Punjab-Haryana High Court
Kuldeep Sharma & Others vs State Of Haryana And Another on 20 January, 2014
Author: Augustine George Masih
Bench: Augustine George Masih
CIVIL WRIT PETITION NO.17116 of 2011 -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
CIVIL WRIT PETITION NO.17116 of 2011
DATE OF DECISION: JANUARY 20, 2014
Kuldeep Sharma & others
.....Petitioner
VERSUS
State of Haryana and another
....Respondents
CORAM:- HON'BLE MR.JUSTICE AUGUSTINE GEORGE MASIH
1. Whether Reporters of local papers may be allowed to see the judgement?
2. To be referred to the Reporters or not?
3. Whether the judgment should be reported in the Digest?
Present: Ms. Anu Chatrath, Advocate
for the petitioners.
Mr. Harish Rathee, Sr. D.A.G., Haryana,
for the State.
*****
AUGUSTINE GEORGE MASIH, J. (ORAL)
Petitioners have approached this Court impugning the letters dated 05.04.2010 (Annexure P-14) and 04.07.2011 (Annexure P-15) whereby the petitioners have been asked to enter into a fresh agreement and in case of non-signing the new agreement, it has been directed that they will be paid salary on DC's rates which was being paid to them at the time of their initial appointment.
It is the contention of the counsel for the petitioners that the petitioners were appointed against the regular sanctioned vacant posts of Instructors in various ITIs on contract basis on DC's rates. In this regard, Harish Kumar 2014.01.22 13:49 I attest to the accuracy and integrity of this document CIVIL WRIT PETITION NO.17116 of 2011 -2- reference has been made to para 7 of the petition. The corresponding reply filed by respondents No. 1 and 2 admits the factum of petitioners having been so appointed .
Counsel for the petitioners has referred to the communication dated 30.12.2008 (Anneuxre P-12) issued by the Ministry of Labour & Employment, Directorate General of Employment & Training, Government of India, to contend that the remuneration to contract faculty in ITIs/ITCs be kept equal to consolidate monthly salary of a regular newly appointed instructor of the institute and that should be reflected in affiliation proforma. On the basis of the said decision, petitioners are entitled to the grant of the said amount of `12,500/- as salary per month. In this regard, reliance has been placed to the communication dated 31.08.2009 (Annexure P-13) issued by the Financial Commissioner & Principal Secretary, Haryana Government, Industrial Training & Technical Education Department, to the Director, Industrial Training & Vocational Education, Haryana respondents No.1 and 2. Vide communication dated 22.02.2010 (Annexure P-14) petitioners have been called upon to enter into a fresh contract only to grant them the benefit of the minimum pay of `12,500/- per month failing which they would only be entitled to the grant of monthly salary as per fixed old DC's rates. Counsel contends that this action of the respondents is not sustainable. Reliance has been placed upon the Full Bench judgment of this Court in CWP No.14796 of 2003, titled 'Avtar Singh Vs. State of Punjab & others', decided on 11.11.2011, which entitles the employee who has continued on a regular sanctioned post although on contract basis for a period of more than three years for grant of minimum of the pay scale. She Harish Kumar 2014.01.22 13:49 I attest to the accuracy and integrity of this document CIVIL WRIT PETITION NO.17116 of 2011 -3- contends, therefore, the action of the respondents is not sustainable and the impugned letters deserve to be set aside.
On the other hand, counsel for the State, has vehemently argued that the petitioners have been appointed on contract basis and their terms of contract would determine their rights. His further contention is that the appointment of the petitioners is on the basis of outsourcing and their services have been hired by the service-providers and they have been thereafter deputed to work under the Government. He has placed reliance upon the judgment of this Court in CWP No.23699 of 2011, titled 'Akshma Verma & others Vs. State of Haryana & others' decided on 20.09.2012 (Anneuxre R-3/2) wherein the similar matter claiming the same benefit stands dismissed by this Court. Counsel contends, therefore, the writ petition deserves to be dismissed.
I have heard the submissions made by the counsel for the parties and with their able assistance have gone through the records of the case.
It is the admitted position that the petitioners were appointed against the duly sanctioned vacant posts although on contract basis and the terms of their appointments would be governed by the said contract. At the time of appointments of the petitioners, they were to be paid as per the DC's rates. This was the norm which was fixed at that stage when appointments were made, however, a decision was taken dated 30.12.2008 by the Ministry of Labour & Employment, Directorate General of Employment & Taining, Government of India, on the basis of 37th meeting of National Council for Vocational Training wherein the recommendations made by the Committee Harish Kumar 2014.01.22 13:49 I attest to the accuracy and integrity of this document CIVIL WRIT PETITION NO.17116 of 2011 -4- to remunerate the contract faculty in ITIs/ITCs equal to consolidated monthly salary of a regular newly appointed Instructor of the institute was allowed and that was required for the affiliation. Since it was a condition for affiliation of the institute, State of Haryana vide communication dated 31.08.2009 (Annexure P-13) accepted the said recommendations and norms and the minimum salary of a Instructors/Senior Instructors & Craft Instructors working on contract basis/DC's rates were granted minimum salary of Rs,12,500/- at par with the new appointees. On the basis of this decision, instructions were issued by the Haryana Government to enter into a fresh agreement with all contractual employees who would be entitled to the minimum pay of Rs.12,500/- per month, if they entered into said contract. This communication is appended as Annexure P-14 and thereafter vide communication dated 04.07.2011 (Anneuxre P-15), the Director, Industrial Training Department, Vocational Education, Haryana, respondent No.2 communicated the Principals of various institutes to comply with the same. Petitioners through this writ petition are impugning the condition of granting of the minimum salary of Rs.12,500/- per month to them making it subject to entering into a fresh contract.
The stand of the respondents counsel that the appointment of the petitioners is through outsourcing is not sustainable as the notice of appointment dated 16.09.2007 (Annexure P-5) reflects the same having been issued by the Department of Directorate of Industrial Training & Vocational Education, Haryana and there is nothing mentioned in the said advertisement with regard to outsourcing. As a matter of fact in the pleadings also the reply does not reflect such a position. The arguments, Harish Kumar 2014.01.22 13:49 I attest to the accuracy and integrity of this document CIVIL WRIT PETITION NO.17116 of 2011 -5- therefore, raised by counsel for the respondents cannot be accepted. As a matter of fact, in the preliminary submissions sub-para 1 internal page 2 it is admitted that the petitioners were engaged on contract basis by the respondents.
The second argument of the counsel for the State that the petitioners are contract employees and, therefore, are bound by the conditions of the contract cannot be disputed on the proposition has been sought to be projected by the counsel, however, where the requirement of the statue and the terms of contracts of affiliation has been reflected in the communication dated 30.12.2008 (Annexure P-12) requiring the grant of the minimum pay of a regular employee at the stage of initial appointment which decision has been accepted by the respondents vide communication dated 04.07.2011 and then making its payment subject to entering into a fresh contract by such contract employee cannot be said to be in accordance with law.
The Full Bench judgment of this Court in Avtar Singh's case (supra) supports the claim of the petitioner with regard to the grant of the minimum of the pay of the post as the requirements laid down therein stand fulfilled. The judgment on which reliance has been placed by the respondents' counsel in the case of Akshama Verma & others' case (supra) cannot be made applicable to the case of the petitioners on the ground that the claim of those petitioners in the writ petition was rejected on the ground that they were appointed on contract basis, not against the regular sanctioned posts and since they were not appointed against the regular sanctioned posts, the consequential benefits could not flow for them as per Harish Kumar 2014.01.22 13:49 I attest to the accuracy and integrity of this document CIVIL WRIT PETITION NO.17116 of 2011 -6- the Full Bench judgment.
In view of the above, the present writ petition is allowed. Directions are issued to the respondents to release the minimum of the pay scale to the petitioners i.e. Rs.12,500/- with effect from the date the similar benefit has been granted to other employees working on contract basis, within a period of three months from the date of receipt of certified copy of this order.
January 20, 2014 ( AUGUSTINE GEORGE MASIH )
Harish JUDGE
Harish Kumar
2014.01.22 13:49
I attest to the accuracy and
integrity of this document