Punjab-Haryana High Court
Jagmal Singh And Others vs State Of Haryana And Others on 25 September, 2012
Author: Augustine George Masih
Bench: Augustine George Masih
CWP No.23745 of 2011 -1-
IN THE PUNJAB AND HARYANA HIGH COURT AT CHANDIGARH
CWP No.23745 of 2011
Date of Decision : 25.9.2012
Jagmal Singh and others
..Petitioners.
Vs.
State of Haryana and others
..Respondents.
CORAM : HON'BLE MR.JUSTICE AUGUSTINE GEORGE MASIH
Present : Mr. Manoj Chahal, Advocate for the petitioners.
Mr. Harish Rathee, Sr.DAG Haryana for the respondents.
Augustine George Masih, J.(Oral)
The petitioners have approached this Court claiming regularisation of service in accordance with the policy decision dated 1.10.2003 Annexure P-4 issued by the respondents which was further amended on 10.2.2004 or from the date their juniors have been regularised with all consequential benefits.
It is the contention of the counsel for the petitioners that the petitioners were appointed as Beldars and Mali on different dates and their services were terminated all of a sudden which resulted in issue being referred to the Industrial Tribunal for decision wherein awards were passed in favour of the petitioners holding the termination of the services of the petitioners to be not in consonance with the provisions of the Industrial Disputes Act. The petitioners were reinstated in service and were granted CWP No.23745 of 2011 -2- continuity. The details of the petitioners i.e. the date of appointment, termination and date of award is as follows:
Sr. Name Date of Date of Date of award by
appointment Termination which continuity
was granted.
1. Jagmal 16.9.1991 01.10.1996 14.03.2006
Singh
2. Maman 25.02.1988 01.11.1999 15.09.2005
Singh
3. Rajinder 18.04.1991 22.08.1997 17.08.2005
Singh
4. Rajpal Febr.1993 16.09.1999 3.10.2003
The petitioners were accordingly reinstated in service. During the period the petitioners were out of service, Government of Haryana formulated policy and published the same on 1.10.2003 according to which services of the daily wagers, who had completed 5 years of service as on 30.9.2003 were to be regularised by creating post for them if not available. In pursuance to the said policy, persons who were appointed subsequent to the petitioners were regularised vide order dated 10.4.2006. Details of such persons are mentioned in para 5 of the writ petition, which reads as follows:
"Sr. Name Date of Appointed Allotted
appointmentinitially Division
as daily wager after
in regularisation
_____________________________________________________________
1. Pala Feb. 1992 Bhiwani (T) Bhiwani Ram
2. Shamsher May 1994 Bhiwani (T) Bhiwani CWP No.23745 of 2011 -3-
3. Zile Singh 15.07.1991 Bhiwani (T) Bhiwani
4. Umed Nov., 1992 Bhiwani (T) Bhiwani
5. Pirthavi April 1994 Bhiwani (T) Ambala (P), Divn.
It is on this basis that the petitioners have now approached the Court asserting that they have been discriminated and their claim for regularisation has not been granted although juniors to them and similarly placed, have been regularised. In support of this contention, counsel for the petitioners has placed reliance upon judgment of this Court passed in Arun Kumar and others Vs. State of Haryana and others in CWP No.4821 of 2011 decided on 19.4.2012 as also order passed by this Court in CWP No.1169 of 2009 Ved Pal and others Vs. State of Haryana and others decided on 10.2.2012. He on this basis contends that the petitioners are entitled to the claim as has been made in the present writ petition.
On the other hand, counsel for the respondents states that the petitioners have only attached the award of one of the petitioners namely Jagmal Singh, petitioner No.1. Award in favour of the other petitioners have not been placed on record. His further contention is that the petitioners did not fulfill the requirement of the policy dated 1.10.2003 which would entitle them to the grant of regularisation of the services. He states that the petitioners were not appointed against any permanent vacancy and they were seasonal forestry workers who were appointed on daily wage basis. The Constitutional scheme which mandated issuance of the advertisement calling for applications and on consideration of the candidature of the CWP No.23745 of 2011 -4- applicants for appointment on public post has not been complied with. Statutory rules governing the service has not been followed in the case of petitioners thus disentitling the petitioners of their claim of regularisation. His further contention is that all policies issued by the State of Haryana for regularisation of the services of the daily wage employees have been withdrawn by the Government of Haryana after the judgment passed by the Supreme Court in Secretary, State of Karnataka and others Vs. Uma Devi and others (2006) 4 SCC 1. He on this basis contends that the writ petition deserves to be dismissed.
I have considered the submissions made by the counsel for the parties and with their assistance have gone through the records of the case.
The fact with regard to the petitioners having been appointed on the post of Beldars-cum-Mali on the dates mentioned in para 2 of the writ petition, their termination and thereafter, the award granting them continuity of service has not been disputed. The objection which has been raised by the counsel for the respondents is that only one award that too in favour of the petitioner No.1 has been attached along with this petition but that does not make any difference as far as the claim made by the petitioners in the present writ petition is concerned. As the award has only been pressed into service to show that the petitioners were granted continuity of service after their termination from the service was found to be illegal. Since the petitioners have been granted reinstatement in service with continuity thereof it can safely be said that the petitioners continue in service from the initial date of their appointment. Similarly placed CWP No.23745 of 2011 -5- employees who were appointed by the respondents, the details whereof have been mentioned in para 3 of the writ petition and reproduced above, who have been appointed subsequent to the appointment of the petitioners they would because of their length of service be termed as senior to those persons. It has not been disputed by the respondents that the mode of appointment of the petitioners is similar to that of Pala Ram, Shamsher, Zile Singh, Umed and Pirthavi who are juniors to the petitioners and have been appointed similarly as the petitioners and are holding the same posts as are being held by the petitioners. In this view of the matter, the claim for regularisation having been granted to the juniors the same claim cannot be denied to the petitioners merely on the ground that after coming into force the judgment of the Supreme Court in Uma Devi's case (supra) the instructions have been withdrawn on the basis of which the petitioners are claiming regularization. In Arun Kumar's cas (supra) this Court while dealing with a similar situation had held as follows:
"It is an admitted position that there are no statutory rules governing the process of appointment on daily wage basis. Petitioners are admittedly performing the duties with the respondents as daily wage employees. The date of initial appointment has only been disputed on the ground by asserting that they were daily wage employees and, therefore, cannot claim regularization. Services of the petitioners were terminated by the respondents which was in violation of the provisions as contained under the ID Act which was challenged CWP No.23745 of 2011 -6- by the petitioners before the Labour Court and the award came in their favour granting them reinstatement in service with continuity thereof. The period of termination, thus, stood obliterated and for all intents and purposes, petitioners are to be treated in service continuously from the date of their initial appointment. In this light when the claim of the petitioners is taken into consideration vis-a-vis. the persons who have been appointed subsequently and whose services had been regularized vide order dated 14.10.2006 (details of these persons have been mentioned above), petitioners have a genuine grouse. It is not in dispute that if the initial date of appointment is taken into consideration, petitioners were appointed prior to the persons who have been regularized vide order dated 14.10.2006. It would also not be out of place to mention here that petitioners and the persons regularized vide order dated 14.10.2006 had jointly filed CWP No.8820 of 2004 claiming regularization which claim has been accepted qua some of the petitioners whose names have been mentioned in the order dated 14.10.2006 and are juniors to the petitioners now, whereas the claim of the petitioners had been rejected. The impugned order passed by the respondents cannot sustain for the reason that the service of the daily rated employees who were similarly placed and were similarly appointed as the petitioners i.e. whose names, find mention in order dated CWP No.23745 of 2011 -7- 14.10.2006, has not been disputed by the respondents in their reply. It is also not in dispute that there are no statutory rules governing their service and in the absence of such a statutory rule, the principle as laid down under the ID Act will have to be given effect to according to the awards passed by the Labour Court in the case of the petitioners and their termination have been found to be not in accordance with law.
In the light of the above, the contention of the respondents that the petitioners' services cannot be regularized, cannot sustain especially when they have not disputed the fact that the petitioners are similarly placed like the persons who have been appointed subsequently and whose services have been regularized vide order dated 14.10.2006.
In a similar matter, this Court in Ved Pal's case (supra) had held as follows:-
"The factum of the petitioners having been appointed prior to the private respondents is not in dispute. It is also not in dispute that they are performing the same duties and the responsibilities are the same as also the department. It is also not in dispute that the claim of the petitioners in compliance with the direction issued by this Court in CWP No.6341 of 2005 was duly considered and recommended for regularization but their claim has been rejected simply because of the judgment CWP No.23745 of 2011 -8- of the Supreme Court in Uma Devi's case (supra). The fact remains that the petitioners remained senior to the private respondents and therefore, had a prior right of regularization and their claim should have been considered in the same terms as in the case of private respondents. The same having not been done, the petitioners have been discriminated against and, therefore, the order rejecting the claim of the petitioners dated 7.5.2007 (Annexure P/5) cannot sustain and is hereby quashed. The petitioners are directed to be regularized in service from the date their juniors were regularized and in the same terms.
Petition is allowed in the above terms."
The claim of the petitioners is further fortified by the observations made by the Hon'ble Supreme Court in M.L.Kesari's case (supra) wherein para 8, it has been observed as follows:-
"8. The object behind the said direction in para 53 of Uma Devi is two-fold. First is to ensure that those, who have put in more than ten years of continuous service without the protection of any interim orders of court or tribunals, before the date of decision in Uma Devi was rendered, are considered for regularization in view of their long service. Second is to ensure that the CWP No.23745 of 2011 -9- departments/instrumentalities do not perpetuate the practice of employing persons on daily wage/adhoc/casual for long periods and then periodically regularize them on ground that they have served for more than ten years, thereby defeating the constitutional or statutory provisions relating to recruitment and appointment. The true effect of the direction is that all persons who have worked for more than ten years as on 10.4.2006 (the date of decision in Uma Devi) without the protection of any interim order of any court or tribunal, in vacant posts, possessing the requisite qualification, are entitled to be considered for regularization. The fact that the employer has not undertaken such exercise of regularization within six months of the decision in Umadevi or that such exercise was undertaken only in regard to a limited few, will not disentitle such employees, the right to be considered for regularization in terms of the above directions in Umadevi as a one- time measure."
In view of the above also, especially in the light of the fact that persons similarly appointed subsequent to the petitioners have been regularized whereas the claim of the petitioners has only been rejected on the ground that the regularization policy stands withdrawn, cannot be accepted as CWP No.23745 of 2011 -10- they had a better and prior right to consideration for regularization than the persons who have been appointed later than the petitioners. The moment the persons junior to the petitioners, whose cases cannot be distinguished with regard to the nature of appointment, work and responsibilities from that of petitioners, stand regularized on the vacant or created post, on which the petitioners had a prior and superior right by virtue of their length of service. Articles 14 and 16 stand violated and in such circumstances, the action of the respondents in rejecting the claim of the petitioners cannot be sustained.
Reliance placed by the counsel for the respondents in G.V.Chandershekar's case (supra) would not affect the decision of this case as there are no statutory rules governing the service and in the absence of such rules, the provisions as contained under the ID Act would apply which would be further tapered with the observations of the Supreme Court in para 53 of the Uma Devi's case (supra) and M.L.Kesari's case (supra)."
Similar was the position in Ved Pal's case (supra). Counsel for the petitioners has informed the Court that the appeal preferred by the State of Haryana against the said order was dismissed by the Division bench of this court and the order has been given effect to by granting regularization of the services of the petitioners in the said writ petition on 9.8.2012.
In the light of the above, the present petition is allowed. CWP No.23745 of 2011 -11- Petitioners are directed to be regularised in service from the date persons juniors to the petitioners have been regularised as is detailed in para 5 of the writ petition. Orders in this regard be passed within a period of two months from the date of receipt of certified copy of this order. The petitioners will be entitled to all consequential benefits except payment of arrears.
( Augustine George Masih) 25.9.2012 Judge Meenu