Punjab-Haryana High Court
Jai Narain Kaushik And Others vs State Of Haryana And Another on 24 January, 2012
Author: Augustine George Masih
Bench: Augustine George Masih
C.W.P. NO.24484 OF 2011 -1-
IN THE HIGH COURT OF PUNJAB OF HARYANA AT CHANDIGARH
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C.W.P. NO.24484 OF 2011
DATE OF DECISION :24.01.2012
Jai Narain Kaushik and others ...Petitioners
Versus
State of Haryana and another ...Respondents
CORAM: HON'BLE MR. JUSTICE AUGUSTINE GEORGE MASIH.
Present : Mr. Rohit Khanna, Advocate,
for the petitioner.
AUGUSTINE GEORGE MASIH, J.
Petitioners have approached this Court with a prayer for quashing of the order dated 11.07.2011 (Annexure P-12) vide which the claim of the petitioners stands rejected for grant of benefit of entire length of service rendered by the petitioners in the Haryana State Minor Irrigation Tubewell Corporation (hereinafter referred to as 'the HSMITC') and other Corporations/Statutory Organizations/Boards to the petitioners for the purpose of grant of Assured Career Progression (hereinafter referred to as 'ACP') Scale and retiral benefits and for removal of the anomaly in ACP and also to extend the same benefit as granted in the case of State of Haryana Vs. Deepak Sood and others decided by the Supreme Court in Civil Appeal No.4446 of 2008 on 15.07.2008 (Annexure P-5).
It is the contention of the petitioners that the petitioners were employees of various State owned Corporations. These Corporations were running in losses because of which the Government decided to close the same and various employees who were juniors to the petitioners in their respective cadre in their organizations were declared surplus and C.W.P. NO.24484 OF 2011 -2- were sent on deputation/ transfer/ absorption in various Departments of State of Haryana. On such deputation/ transfer/ absorption, they were given of the benefits which accrued to them for their service rendered in their parent Boards/Corporations for the purpose of pay protection, ACP and other retiral benefits. Petitioners were continued in service of the Boards/Corporations but they came to be retrenched later on. After a break of some time, petitioners were absorbed in various Departments of the State of Haryana but their appointment in the Government Departments were to be governed as per the terms and conditions of their appointment letter. Pay protection and other monetary benefits were not granted at that time nor were they given the benefit of their seniority. Petitioners contend that they have been discriminated against while similarly placed employees have been granted the benefit of pay protection, ACP and other benefits of the past service. Reliance in support of their claim has been made on the case of the employees who were declared surplus from Municipal Corporation and other Statutory Organizations, who were later on absorbed in the Government Departments of the State of Haryana and when were not given the benefit of the past service and having approached the Supreme Court, they were granted the said relief by the Hon'ble Supreme Court vide its judgment dated 15.07.2008 in the case of State of Haryana and another Vs. Deepak Sood and others (Annexure P-5). Reliance has also been placed on the judgment of this Court in C.W.P No.19638 of 2008 titled as 'Raj Kumar Vs. State of Haryana and others' decided on 14.01.2010 wherein similar benefits were granted to the petitioners. Reference has been made to the Scheme dated 16.12.2010 introduced by the State of Haryana (Annexure P-9) with regard to grant of additional C.W.P. NO.24484 OF 2011 -3- increment at 10th and 20th year point in time scale to all Group 'C' and Group 'D' employees and on this basis petitioners are claiming the grant of ACP increment.
As the aforesaid relief was not granted to the petitioners their umbrella body filed C.W.P. No.19447 of 2009 titled as 'Joint Action Committee Retrenched Employees, Haryana Vs. State of Haryana'. The same was dismissed but liberty was granted to the members of the Union to make individual representations to the respondents to plead their cases by giving necessary facts with further direction to the respondents that they shall examine such representations and dispose them of within four months of their receipt by applying the judgment in the case of State of Haryana Vs. Deepak Sood (supra). In pursuance to this, representations were filed by the petitioners to the Chief Secretary, Government of Haryana, Chandigarh, which were disposed of vide order dated 11.07.2011 (Annexure P-12) rejecting the claim of the petitioners leading to the petitioners approaching this Court by way of the present writ petition challenging this order.
I have heard counsel for the petitioners and gone through the records of the case with his able assistance.
Petitioners in this writ petition are praying for a direction to the respondents to grant the benefit of entire length of service rendered by them in the Statutory Organizations/Corporations/Boards, in which they were earlier working before their absorption in the various Government offices of the State of Haryana and the service after absorption for the grant of ACP, pay protection and for extension of same benefits as granted by the Supreme Court in the case of State of Haryana and another Vs. Deepak Sood and others (Annexure P-5). Petitioners C.W.P. NO.24484 OF 2011 -4- have also prayed for issuance of the direction to the respondents to grant the benefit of past service for the retiral dues including pension etc. apart from a writ of certiorari for quashing the impugned order dated 11.07.2011 (Annexure P-12) vide which the claims of the petitioners have been rejected.
Counsel for the petitioner during the course of arguments has placed basic reliance upon the judgment of the Supreme Court in the case of State of Haryana and another Vs. Deepak Sood and others (supra). Perusal of the said order would show that the Supreme Court while granting the relief to the petitioners held as follows:-
"Therefore, in the series of judgments given by this Court the view has been taken that in case of a transfer/absorption from one department to another or from public sector to State though the benefit of the seniority may be denied to the incumbent but not for other benefits like pay fixation and for the pensionary benefits. Therefore, when the benefit of past service rendered in the parent department was given for fixation of pay and pensionary benefits, there is no reason why the past service should not be counted for grant of ACP Grade. Consequently, we are of the view that the view taken by the Division Bench of the High Court in the impugned judgment and order is correct and there is no ground to interfere in this appeal. Consequently, this appeal is dismissed but with no order as to costs." (emphasis supplied) That was the case where the benefit of past service rendered in the parent department before transfer/absorption was given for fixation of pay and pensionary benefits denying the employees the benefit for the grant of ACP grade only, which was held by the Supreme Court to be unjustified. The other judgments which have been relied upon by the C.W.P. NO.24484 OF 2011 -5- counsel for the petitioner during the course of hearing such as Haryana State Minor Irrigation Tubewells Corporation and others Vs. G.S. Uppal and others AIR 2008 Supreme Court 2152 and Gurmail and others Vs. State of Punjab and others 1991 (1) Supreme Court Cases, 189, relate to the employees where there was no break in service and they had also been granted the pay protection benefit on pay fixation and pensionary benefits which is not the situation in the case in hand.
Present is a case where there is break in service i.e. after the retrenchment from the Government Corporation/ Board and absorption in Government service and no benefit of pay protection, pensionary benefits etc. has been granted to the petitioners. The respondents while considering the representations of the petitioners has, in detail, gone into all the aspects which have been projected by the petitioners in the present writ petition and dealt the same in accordance with law. The relevant portion of the impugned order dated 11.07.2011 (Annexure P12) culling out this aspect reads as follows:-
"The case of Sh. Jai Kishan, ARC has been examined and the brief facts of the present case are as under:-
Sh. Jai Kishan was appointed to the post of ARC in the Irrigation Department vide office order bearing Memo No.2/13/2006-2EII dated 20.10.2006. Prior to this appointment he was working in Haryana State Minor Irrigation Tubewell Corporation. Due to closure of the said corporation his services were retrenched and he was given retrenchment compensation by the Corporation. Being model and welfare State the grievances of such retrenched employees were considered and as a welfare measure/kind gesture it was decided to give them appointment in the Government Departments Boards/Corporations with the C.W.P. NO.24484 OF 2011 -6- following condition:-
"The adjustment would be subject to the
submission by the retrenched employees of an
affidavit declaring that the adjustment so
provided would be considered as a fresh
appointment and he/she would not claim benefit of past service for the period prior to retrenchment."
According to the above decision condition in Para No.1 was also mentioned in his appointment letter dated 2.10.2006 which is as under:-
"(2) Your appointment is made afresh on available Group C post i.e. ARC and you will be entitled to draw minimum pay of the post being offered.
Accordingly, you will not claim any benefit of the past service for the period prior to retrenchment as per your declaration on oath or for the period you remained out of service as a result of retrenchment in any manner."
Sh. Jai Kishan, ARC accepted the same.
Whereas in Deepak Sood case the employees were appointed on transfer basis in the Public Health Department before closure of Minor Irrigation Tubewell Corporation and subsequently it was decided to permanently absorb these employees in the Public Health Department. The benefit of pay protection was given to these employees on the basis that they never remained out of service whereas in the present case Sh. Jai Kishan, ARC remained out of service from 30.07.2002 to 02.10.2006 and retrenchment compensation was given to him. As per terms and conditions of his appointment letter, he has been treated a fresh appointee. Therefore, the facts and circumstances of Deepak Sood case and the case of Sh. Jai Kishan, ARC are different. It is necessary to mention here that after the judgment of Supreme Court C.W.P. NO.24484 OF 2011 -7- of India in Deepak Sood case the whole issue was examined by the Competent Authority i.e. Finance Department and accordingly office memorandum bearing letter No.6/48/2009-PR(FD) dated 16.12.2010 has been issued wherein all the provisions of service rules and different incentive schemes introduced by the State Government form time to form have been explained including provisions of ACP scales if he is fit for promotion, whereas, Sh. Jai Kishan, ARC is junior in the cadre and benefit of past service rendered by him in Haryana State Minor Irrigation Tubewell Corporation has not been given towards seniority. Therefore, he will be entitled to the benefit of ACP Scale after the completion of 10 years regular satisfactory service from the date of his appointment in the Irrigation Department. Therefore, claim of Sh. Jai Kishan, ARC cannot be acceded arid his representation dated 24.02.2011, which was received on 01.03.2011 is hereby rejected."
A perusal of the above would show that the claim of the petitioners have been duly considered by the respondents in accordance with law giving justified reasons for rejecting the same hence the same does not call for any interference by this Court. The present writ petition thus stands dismissed.
24.01.2012 (AUGUSTINE GEORGE MASIH) adhikari JUDGE