Punjab-Haryana High Court
Pradeep Kumar And Others vs Uma Devi And Others Reported As 2006(2) ... on 18 December, 2008
Author: Ajay Tewari
Bench: Ajay Tewari
C.W.P No. 14289 of 2001 ::1::
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
C.W.P No. 14289 of 2001
Date of decision : December 18, 2008
Pradeep Kumar and others
...... Petitioners
through Mr.K.L.Arora , Advocate and
Ms Priya Narain, Advocate
v.
State of Punjab and another,
...... Respondents
through Mr.Anil Sharma, Sr.DAG Punjab
for respondent No.1.
Mr.S.S.Bahl, Advocate
for respondent No.2.
CORAM : HON'BLE MR.JUSTICE AJAY TEWARI
***
1. Whether Reporters of Local Newspapers may be allowed to see the judgment ?
2. To be referred to the Reporters or not ?
3. Whether the judgment should be reported in the Digest ?
*** AJAY TEWARI, J This writ petition was filed for claiming regularization as well as for a direction to the respondents to release the pay of the petitioners at the starting point of the regular scale.
Originally, 20 clerks and 6 Class IV employees had filed this writ petition but as per learned counsel for the petitioners, after the abolition of octroi, services of 15 Clerks and 3 Class III employees had been terminated and, thus, now he restricted the prayer in the present petition to only 8 persons, namely, 5 Clerks and 3 Sewadars.
C.W.P No. 14289 of 2001 ::2::
The admitted facts which have emerged are that after the Notified Area Committee-respondent No.2 was constituted, the Government of Punjab in the Local Government Department granted approval for filling up various posts, an advertisement regarding which was issued on 8.1.2000 for filling up said posts. About 700 persons had applied and interviews were carried out by a team of five officers. Ultimately, the petitioners were selected.
Learned counsel for the petitioners has argued that even though these posts may have been advertised on contract basis, yet the fact that eight of the petitioners have been continuing since 2000 and the fact that these were all posts which were created in a newly constituted Committee clearly reveal that the work assigned to these petitioners is of a regular and permanent nature. He further argued that with this background the selection of the petitioners having been made after proper advertisement and after getting candidates from Employment Exchange, clearly establishes their right to be considered as regular.
In reply, learned counsel for the respondents submit that these posts were sanctioned and advertised on contractual basis and that having applied for the same with open eyes, the petitioners could not now lay a claim to improve their status.
In my opinion, even if the argument of learned counsel for the respondents is accepted, it could still not have the effect of nullifying the claim of the petitioners. In Secretary State of Karnataka and others vs. Uma Devi and others reported as 2006(2) SCT 462, the Hon'ble Supreme Court held as follows :-
"44. One aspect needs to be clarified. There may be C.W.P No. 14289 of 2001 ::3::
cases where irregular appointments (not illegal appointments) as explained in S.V.Narayanappa (supra), R.N.Nanjundappa (supra), and B.N.Nagarajan (supra) and referred to in paragraph 15 above, of duly qualified persons in duly sanctioned vacant posts might have been made and the employees have continued to work for ten years or more but without the intervention of orders of courts or of tribunals. The question of regularization of the services of such employees may have to be considered on merits in the light of the principles settled by this Court in the cases above referred to and in the light of this judgment. In that context, the Union of India, the State Governments and their instrumentalities should take steps to regularize 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 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 regularization, if any already made, but not subjudice, need not be reopened based on this judgment, but there should be no further by-passing of the constitutional requirement and regularizing or making C.W.P No. 14289 of 2001 ::4::
permanent, those not duly appointed as per the constitutional scheme."
In its subsequent decision reported as U.P. State Electricity Board vs. Pooran Chandra Pandey, (SC) 2007 (4) page 179, the Hon'ble Supreme Court held as follows :-
"We are constrained to refer to the above decisions and principles contained therein because we find that often Uma Devi's case (supra) is being applied by Courts mechanically as if it were a Euclid's formula without seeing the facts of a particular case. As observed by this Court in Bhavnagar University (supra) and Bharat Petroleum Corporation Ltd. (supra), a little difference in facts or even one additional fact may make a lot of difference in the precedential value of a decision. Hence, in our opinion, Uma Devi's case (supra) cannot be applied mechanically without seeing the facts of a particular case, as a little difference in facts can make Uma Devi's case (supra) inapplicable to the facts of that case.
In the present case, the writ petitioners (respondents herein) only wish that they should not be discriminated against vis-a-vis the original employees of the Electricity Board since they have been taken over by the Electricity Board "in the same manner and position".
Thus, the writ petitioners have to be deemed to have been appointed in the service of the Electricity Board from the date of their original appointments in the Society. Since they were all appointed in the society before 04.05.1990 they cannot be denied the benefit of the decision of the Electricity Board dated 28.11.1996 permitting regularisation of the employees of the Electricity Board who were working from before 04.05.1990. To take a contrary view would violate C.W.P No. 14289 of 2001 ::5::
Article 14 of the Constitution. We have to read Uma Devi's case (supra) in conformity with Article 14 of the Constitution, and we cannot read it in a manner which will make it in conflict with Article 14. The Constitution is the supreme law of the land, and any judgment, not even of the Supreme Court, can violate the Constitution."
In the circumstances, respondents No.1 and 2 are directed to frame a policy as envisaged by the directions of the Hon'ble Supreme Court extracted above within a period of four months of the receipt of a certified copy of this order and examine individual cases of the petitioners within two months thereafter and pass appropriate orders thereon.
As regards the claim of the petitioners for release of pay at the start of the pay-scale, I find that the same is covered by a decision of this Court in Pardeep Kumar and others vs The State of Punjab & others, CWP No.8671 of 1987, decided on 31.10.2008, wherein this Court held as follows :-
" There is apparent conflict between the aforesaid judgment in Sandeep Kumar's case and the State of Punjab and others vs. Surinder Singh and another. However, in Surinder Kumar's case (supra), the Hon'ble Apex Court has ruled that the principle cannot be applied unless there is total and complete identity between the two persons. In the present case, on account of various earlier judgment of this Court confirmed by the Hon'ble Supreme Court, daily wagers in almost all the departments are getting the basic salary in the pay scale of equivalent post occupied by the regular employees and this benefit has been allowed to them for the period C.W.P No. 14289 of 2001 ::6::
preceding three years and two months before the filing of the writ petition. The petitioners are similarly situated and, thus, there is complete and total identity between the petitioners and the daily wagers who are working in other departments in the State. The petitioners cannot be denied the similar benefits as has been granted to other daily wagers working in the same and other department in the State of Punjab."
In view of the above, the respondents are directed to place the petitioners at the start of the basic pay scale of the regular employees performing the same duties like the petitioners for as long as they work or have worked as contractual employees. Let the benefits flowing from this order be given to the petitioners within a period of three months of the receipt of a certified copy of this order.
The writ petition is disposed of in the above terms.
( AJAY TEWARI ) December 18 , 2008. JUDGE `kk'