Punjab-Haryana High Court
Sumer Singh And Others vs State Of Haryana And Others on 25 April, 2013
Author: Tejinder Singh Dhindsa
Bench: Tejinder Singh Dhindsa
CIVIL WRIT PETITION NO.11960 OF 2012 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
CIVIL WRIT PETITION NO.11960 OF 2012
DATE OF DECISION: APRIL 25, 2013
Sumer Singh and others .......Petitioners
Versus
State of Haryana and others .......Respondents
CORAM:- HON'BLE MR.JUSTICE TEJINDER SINGH DHINDSA
Present: Mr.Ravinder Malik, Advocate for petitioners
in Civil Writ Petition Nos.11960, 12090, 12081, 12082
of 2012 and Civil Revision No.3737 of 2012.
Mr.Ravi Sharma and Mr.Sunil Bhardwaj, Advocates
for the petitioners in Civil Writ Petition Nos.12084,
12012, 12093 of 2012.
Mr.Rajender Kumar and Mr.Aman Pal, Advocates
for the petitioners in Civil Writ Petition No.12161 of
2012.
Mr.Nonish Kumar, Advocate for the petitioners in
Civil Writ Petition No.11949 of 2012.
Mr.KS Dhanora, Advocate for petitioner in
Civil Writ Petition No.13551 of 2012.
Mr.Gopal Sharma, Advocate for the petitioners in
Civil Writ Petition Nos.11980, 11985, 11986 of 2012.
Mr.ADS Jattana, Advocate for the petitioners in
Civil Writ Petition No.11998 of 2012.
Mr.Rajiv Joshi, Advocate for the petitioner in
Civil Writ Petition No.12149 of 2012.
Mr.PK Sachdev, Advocate for the petitioners in
Civil Writ Petition Nos.12147 and 12148 of 2012.
Mr.Harish Rathee, Senior Deputy Advocate General,
Haryana.
...
CIVIL WRIT PETITION NO.11960 OF 2012 2
TEJINDER SINGH DHINDSA, J.
This order shall dispose of Civil Writ Petition Nos.11960 of 2012 (Sumer Singh and others v. State of Haryana and others), 11949 of 2012 (Sanjiv Kumar and others v. State of Haryana and others) , 11980 of 2012 (Karampal and another v. State of Haryana and others), 11985 of 2012 (Subhash Kumar v. State of Haryana and others), 11986 of 2012 (Sukhdev Singh and another v. State of Haryana and others), 11998 of 2012 (Satpal and others v. State of Haryana and others), 12012 of 2012 (Jagdish Ram and others v. State of Haryana and others), 12084 of 2012 (Rajinder Kumar and others v. State of Haryana and others), 12090 of 2012 (Wazir Singh v. State of Haryana and others), 12093 of 2012 (Krishan Kumar and another v. State of Haryana and others), 12147 of 2012 (Wazir Singh and another v. State of Haryana and others), 12148 of 2012 (Mahesh Kumar v. State of Haryana and others), 12149 of 2012 (Om Parkash v. State of Haryana and others), 12161 of 2012 (Shailender Kumar and others v. State of Haryana and others), 13551 of 2012 (Surender Kumar v. State of Haryana and others), 12081 of 2012 (Kanihya Lal and others v. State of Haryana and others), 12082 of 2012 (Raj Kumar and others v. State of Haryana and others) and Civil Revision No.3737 of 2012 (Gurnam Singh and others v. Transport Commissioner and others) as identical issue arises for adjudication in all these petitions.
2. The challenge in this bunch of petitions is to the order dated 6.6.2012 issued by the Director General, Haryana CIVIL WRIT PETITION NO.11960 OF 2012 3 Roadways, Chandigarh and addressed to all the General Managers, Haryana Roadways whereby the Drivers/Conductors taken from amongst the Workshop Staff on temporary basis are to join back on their original posts. The facts are being noticed from Civil Writ Petition No.11960 of 2012.
3. The petitioners were initially appointed and served as the members of Workshop Staff with different Haryana Roadways Depots carrying the designation of Assistant Welder/ Helper/ Assistant Electrician/ Fitter/ Washing Boy etc. In the year 2006, the State Transport Commissioner, Haryana issued a letter dated 19.9.2006 to all the General Managers of the Haryana Roadways in the State of Haryana in terms of which applications were to be taken from employees working in the Mechanical Staff Workshops for change of trade and to be assigned duties on the posts of Drivers/Conductors, provided such employees possessed the requisite eligibility for holding the posts of Drivers/Conductors. Apparently, such an exercise was carried out and consequently, 135 applications from amongst the employees of the Workshop Staff were received for the post of Conductors and 28 for the post of Drivers. Accordingly, in terms of memo dated 9.5.2007, Annexure P3, a decision was taken to adjust such employees as Conductors/Drivers subject to the provision that they fulfilled the requirements prescribed for the posts under the State Transport Department Rules. Such communication dated 9.5.2007 itself clarified that such process of adjustment was to be a purely temporary measure. The present petitioners are amongst such Class-IV Workshop Staff employees who had submitted their CIVIL WRIT PETITION NO.11960 OF 2012 4 applications and in terms of issuance of orders dated 24.5.2007, Annexure P4 and orders dated 2.7.2007, Annexures P5 and P6, the petitioners were adjusted as Conductors purely on temporary basis. Upon such adjustment, the petitioners underwent Conductors' training and were even assigned temporary Conductor numbers. It has been pleaded that the petitioners since the year 2007 have been working either on the posts of Conductors or Drivers continuously and have worked with utmost diligence and honesty. Challenge in the present petition is to the order dated 6.6.2012, Annexure P14, issued by the Director General, Haryana Roadways whereby such employees who were members of the Workshop Staff like the petitioners and who had been temporarily posted as Drivers/Conductors have been called upon to join their original posts. In compliance of such general impugned order dated 6.6.2012, Annexure P14, individual orders have been issued to the petitioners of even date i.e. 6.6.2012 at Annexures P12 and P13 whereby they have been posted to their original substantive post as members of the Workshop Staff. Challenge has also been laid to such individual orders which had been passed in pursuance to the general order dated 6.6.2012, Annexure P14.
4. Learned counsel appearing for the petitioners have vehemently argued that the impugned order amounts to reversion and the same has been passed without affording any opportunity of hearing and without issuance of a show cause notice. Accordingly, it has been argued that the impugned order directing the petitioners to join back on Class-IV post as members CIVIL WRIT PETITION NO.11960 OF 2012 5 of the Workshop Staff cannot sustain on the short ground that such order has been passed in violation of the principles of natural justice. It has also been urged that the petitioners were appointed on the post of Conductors/Drivers only upon applications having been invited and subject to their fulfilling the eligibility criteria as stipulated under the statutory rules. Learned counsel would argue that having worked on the Class-III post of Conductors/Drivers for a period of almost five years, the petitioners would be vested with a right to continue on such posts. Reliance has also been placed upon documents appended at Annexures P9 and P10 to contend that the respondent- authorities had earlier in point of time considered the issue and a decision had been taken that since the fleet strength of buses was likely to increase and there was already over-staffing in the Workshops, there would be no justification to revert such Drivers/Conductors who had been adjusted from amongst the Workshop Staff. Argument raised is that the impugned order dated 6.6.2012 has been passed in super-session of the earlier decisions dated 11.8.2008, Annexure P9, and dated 29.8.2008, Annexure P10, without any justifiable basis.
5. Per contra, learned State counsel in terms of adverting to the common written statement filed on behalf of respondents No.1 to 6 would justify the action of the State by submitting that the petitioners had only been adjusted as Drivers/ Conductors purely on temporary basis to meet the shortage of Drivers and Conductors and such adjustment from amongst the Workshop Staff was only till the joining of regular recruits through a regular CIVIL WRIT PETITION NO.11960 OF 2012 6 process of selection. Learned State counsel would also submit that the petitioners had been adjusted on the post of Drivers/ Conductors and were drawing pay of their original post (Class-IV post) and as such, no right came to vest with them to continue on the post of Conductors/Drivers on account of such adjustment which had been made purely on account of the administrative exigency of service. It has also been submitted on behalf of the State that Conductor numbers had been allotted to the petitioners only to distinguish them from the regular/ permanent incumbents on the post of Conductors and Drivers and the imparting of training was necessary only to facilitate such employees of the Workshop Staff to discharge the duties of the post of Conductor against which they have been temporarily adjusted. On the strength of such submissions, a prayer for dismissal of the writ petitions has been made.
6. Having heard learned counsel for the parties at length and having perused the pleadings on record, the first question that arises for consideration in these petitions is, as to whether the petitioners ever came to be validly appointed on the posts of Conductors/Drivers so as to raise a prayer to continue on such posts and to be not shifted back to their original posts as members of the Workshop Staff?
7. Recruitment to the posts of Drivers and Conductors under the Haryana Roadways is governed by the Statutory Rules called the Haryana Transport Department (Group-C) Haryana Roadways Service Rules, 1995 (for short '1995 Rules'). Rule 9 governs the method of recruitment. Relevant extract of Rule 9 CIVIL WRIT PETITION NO.11960 OF 2012 7 pertaining to the post of Heavy Vehicle Driver and Conductor is extracted herein for facility of reference:
"Recruitment to the Service shall be made:-
MINISTERIAL STAFF xxxxxxxxxx OPERATIONAL STAFF
a) to f) xxxxxxxxxxxxx
g) In the case of Heavy Vehicle Driver
i) by direct recruitment; or
ii) by transfer or deputation of an official already in the service of any State Government or the Government of India.
h) xxxxxxxxxxxxxxxxx
i) In the case of Conductor
i) by direct recruitment; or
ii) by transfer or deputation of an official already in the service of any State Government or the Government of India."
8. A bare reading of the Rule makes it clear that the modes of recruitment prescribed under the Statutory Service Rules for the post of Heavy Vehicle Drivers and Conductors are either by way of direct recruitment or by transfer or deputation of an official already in the service of any State Government or Government of India. The contention raised on behalf of the petitioners that their appointment on the post of Conductors/Drivers would be covered under the mode of 'transfer' as prescribed under the Rules is without merit. Under service law CIVIL WRIT PETITION NO.11960 OF 2012 8 jurisprudence, transfer can only be made to an equivalent post. The relevant parameters for determining equivalence of posts would be the status, nature and responsibilities of the duties and the pay scale attached to the two posts. The admitted position of fact in the present case is that the petitioners prior to joining as Conductors/Drivers (Class-III posts) were members of the Workshop Staff and holders of Class-IV post. Even upon adjustment of Conductors/Drivers, the pay scale admissible to such Class-III post was never granted to them. As such, the joining of the petitioners purely on a temporary post as Conductors/Drivers as mentioned in their orders of adjustment cannot be construed as a valid appointment to the post of Conductors/Drivers as envisaged under the 1995 Rules. Merely on account of the fact that the petitioners had been imparted training for the post of Conductor and their having served on such posts of Conductors/Drivers for a certain length of time would not lend to their 'adjustment' a colour of 'regular appointment'. Accepting the contention raised on behalf of the petitioners that they had come to be validly appointed to the posts of Conductors/Drivers in the year 2007 would amount to recognizing yet another mode of recruitment which is totally alien to the Statutory Rules governing the service. The same is impermissible.
9. Having held the petitioners to be not validly appointed as Conductors/Drivers, the question of their reversion does not arise. The petitioners were merely adjusted on Class-III post on purely temporary post who, in the light of the impugned orders, CIVIL WRIT PETITION NO.11960 OF 2012 9 are being called upon to join back on their substantive posts as members of the workshop Staff. To such extent, the use of word 'reversion' in the impugned order dated 6.6.2012 is a mis-mono and no advantage thereof can be derived by the petitioners.
10. The next issue would be as regards the requirement on the part of the respondents to have adhered to the principles of natural justice while issuing the impugned orders. It is by now well settled that the principles of natural justice cannot be applied in a strait-jacket formula. Their application depends upon the facts and circumstances of each case. To sustain the ground of violation of principles of natural justice, the petitioners would require to establish that they were prejudiced on account of non- issuance of a notice or the non-grant of opportunity of personal hearing prior to the issuance of the impugned order calling upon them to join back on their substantive post. In the facts of the present case, as the petitioners had never been validly appointed to the post of Conductors/Drivers, no right came to vest in them to continue on such post. There would be no requirement of observance of the principles of natural justice prior to taking a decision calling upon the petitioners to join back on their substantive posts. Still further, the impugned orders did not entail any adverse civil consequences inasmuch as the petitioners while having been adjusted as Drivers/Conductors on a purely temporary basis had continued to draw the pay scale as admissible on the substantive post that they had held being members of the Workshop Staff. While taking such view, I would draw support from a judgment of the Hon'ble Supreme Court of CIVIL WRIT PETITION NO.11960 OF 2012 10 India in Punjab State Electricity Board and another v. Baldev Singh, 1998(5) Supreme Court Cases 450, wherein it was held in the following terms:
"Having heard the learned counsel for the parties and examining the materials on record we have no hesitation to hold that in the facts and circumstances of the case the question of giving an opportunity of hearing to the plaintiff before passing the order dated 8.1.1981 does not arise. Since the plaintiff's appointment/promotion to the post of Assistant Lineman was purely on ad hoc basis and the higher authorities directed to discontinue such ad hoc appointment, the competent authority passed the impugned order posting the plaintiff against his substantive post of Charge I Mate. The plaintiff had not acquired any right to the post of Assistant Lineman and further, the impugned order dated 8.1.1981 cannot be held to be penal in nature.
In that view of the matter, the question of giving an opportunity of hearing does not arise. The lower appellate court as well as the High Court committed serious error in interfering with the judgment of the trial Court."
11. For the reasons recorded above, I find no infirmity in the action of the respondent-authorities in passing the impugned order dated 6.6.2012 calling upon the petitioners to join back on their original posts on account of the cogent basis contained CIVIL WRIT PETITION NO.11960 OF 2012 11 therein i.e. the regular Drivers and Conductors having assumed their duties upon having been appointed in the Haryana Roadways Department in pursuance to a regular selection of Conductors at the hands of the Haryana Staff Selection Commission.
12. There is no merit in the petitions and the same are, accordingly, dismissed.
( TEJINDER SINGH DHINDSA )
APRIL 25, 2013 JUDGE
SRM
Note: Whether to be referred to Reporter? Yes/No