Punjab-Haryana High Court
Ashok Kumar And Ors vs State Of Haryana Etc on 14 November, 2018
Author: Ritu Bahri
Bench: Ritu Bahri
CWP No. 2460 of 2017 1
IN THE HIGH COURT OF PUNJAB & HARYANA
AT CHANDIGARH
CWP No. 2460 of 2017
Date of decision : 14.11.2018
Ashok Kumar and ors. ...Petitioners
versus
State of Haryana and ors. ...Respondents
CORAM: HON'BLE MS. JUSTICE RITU BAHRI
Present: Mr. R.K. Malik, Sr. Advocate with
Mr. Bhupinder Malik, Advocate
for the petitioner.
Mr. Kiran Pal Singh, A.A.G. Haryana
****
RITU BAHRI , J.
In the present civil writ petition, the petitioners are seeking issuance of writ in the nature of mandamus directing the respondents to count the services rendered by them in Haryana State Minor Irrigation Tubewell Coproration Limited (for brevity 'HSMITC') for the purpose of retiral benefits.
Initially, petitioners were recruited in HSMITC, which was under the exclusive control of Government of Haryana. The service rendered by petitioner in HSMITC has been mentioned in para No. 2 of the petition. However, State of Haryana decided to close down the HSMITC and due to closure, the petitioners have been retrenched in the month of July, 2002. The petitioners were thereafter reappointed keeping in view the reservation provided by the State Government for retrenched employees. The details of re-appointment of the petitioners has been mentioned in para 1 of 10 ::: Downloaded on - 31-12-2018 21:23:51 ::: CWP No. 2460 of 2017 2 No. 3 of the petition. Thereafter, State of Haryana issued a policy decision vide office memorandum dated 07.01.2002 (Annexure P-1) and provided an opportunity to all the employees to count their previous service rendered with Boards/Corporations/State Government undertakings in the present department for the purpose of pension. The petitioners made various request to the respondent-department for counting of their previous service for the purpose of pension and other retiral benefits. Finally they served demand notice (Annexure P-2) for counting their previous service for the purpose of pension and other retiral benefits.
On notice, a written statement has been filed on behalf of respondent Nos. 1 and 2 admitting the fact that the petitioners were earlier working in HSMITC but due to closure of HSMITC, their services were retrenched in the year 2002. They were paid compensation at the time of retrenchment under provisions of Industrial Dispute Act, 1947 (Annexure R-1). Thereafter, State Government decided to readjust the retrenched employees of various Boards and Corporations against vacant posts of Direct Quota in various Government Departments/Boards/Corporations, by framing a policy dated 21.06.2006 (Annexure R-2), whereby the retrenched employees who were less than or 55 years as on 18.05.2006 were considered for adjustment as fresh appointment with certain terms and conditions. In pursuance to the above policy, the petitioners were given appointment letters with certain terms and conditions (Annexure R-3 colly). Further the petitioners tendered the requisite affidavits (Annexure R-4 of one of the petitioner) at the time of joining in the Haryana Irrigation Department to the respective offices where they were posted thus accepting 2 of 10 ::: Downloaded on - 31-12-2018 21:23:51 ::: CWP No. 2460 of 2017 3 the terms and conditions of above cited policy as well as offer of appointment declaring that they would not claim benefit of past service for the period prior to retrenchment or for the period they remain out of service as a result of retrenchment or in any manner. Some of the petitioners got retired after attaing the age of superannuation with all dues which were admissible to them as per Haryana Government existing rules and regulations.
The question for consideration before this Court is that whether the petitioners who were earlier working in HSMITC after their retrenchment on being permanently absorbed in other departments of Haryana, can now claim benefit of past service rendered by them in HSMIC for the purpose of pension and other retiral benefits.
Learned senior counsel for the petitioners submits that the issue involved in the present writ petition is squarely covered by the judgment of this Court in CWP No. 17343-2007 titled as Jai Prakash vs. State of Haryana and others, decided on 28.11.2008 (Annexure P-3). Similar view has been taken by this Court in CWP NO. 10535-2007 and 10559-2007 (Annexure P-4). Reference has further been made to a judgment of this Court in CWP No. 3792-2012 titled as Suresh Chand and other vs. State of Haryana, decided on 14.11.2016 (Annexure P-5). Even LPA filed against the above said judgment stands dismissed on 05.10.2016.
On the other, learned State counsel states that in the judgments (Annexure P-3 and P-4) referred to by learned senior counsel for the petitioners, the facts are entirely different as in those cases,m the petitioners were surplus employees, whereas in the present case, the petitioners are 3 of 10 ::: Downloaded on - 31-12-2018 21:23:51 ::: CWP No. 2460 of 2017 4 retrenched employees and were offered appointment, in view of common policy dated 21.06.2006 issued by Haryana Government for retrenched employees.
Learned State counsel has further submitted that the case of the petitioners is also not covered in the judgment (Annexure P-5) in CWP No. 3792-2012 and 11987-2015, decided on 14.01.2016 as the facts and circumstances of both the cases are entirely different. The petitioner Suresh Chand in CWP No. 3792-2012 was adjusted in HSAMB vide memo dated 18.11.2004 and the petitioner Subhash Arora was adjusted in the above department vide memo dated 16.11.2004. All this happened prior to 31.12.2005 when old pension scheme to Government employee was in existence. In the present case, the petitioners were given fresh appointment after 01.01.2006 under certain terms and conditions of policy notified on 21.06.2006 and they are covered under New Defined Contributory Pension Scheme. The above said judgments were based on policy/instructions dated 07.01.2002.
Learned State counsel has submitted that the controversy involved in the present writ petition has been decided by this Court in CWP No. 24484-2011 titled as Jai Narayan Kaushik and others vs. State of Haryana and another, decided on 24.01.2012 (Annexure R-5). Even LPA No. 570-2012 filed against the above said judgment stands dismissed on 04.02.2014 (Annexure R-6).
Heard learned counsel for the parties.
In the present case, it is not being disputed that the petitioners were earlier recruited in HSMITC and thereafter they have been retrenched 4 of 10 ::: Downloaded on - 31-12-2018 21:23:51 ::: CWP No. 2460 of 2017 5 in the month of July, 2002. Thereafter, they were issued fresh appiontment letters with certain terms and conditions, in view of the policy dated 21.06.2006 (Annexure R-2) provided by the State Government for retrenched employees.
Reference at this stage can be made to policy dated 21.06.2006. The operative part of policy reads as under:-
The scheme is regarding re-employment of regular retrenched Group C and D employees of Boards/Corporations/Public Sector Undertakings etc., who were retrenched during the period from 1.3.2000 to 1.3.2005 against the vacancies of direct recruitment of Group C and D available in the Boards/Corporations/Public Sector Undertakings/Cofederations/Urban Local Bodies/Panchayati Raj including the departments of the State Government within a period of six months taking into consideration the following provisions:-
1. The State Public Enterprises and Apex Co-operative Federations, which have been closed, shall not be re-opened.
2. The regular employees of the Boards/Corporations/ Co-operative Federations and other Public Sector Undertakings who have been retrenched on account of closure or restructuring of these organizations between 1st March 2000 to 1st March 2005, shall be considered for adjustment.
3. The employees who are less than or 55 years of age as on 18.5.2006 shall be considered for adjustment.
4. All vacancies of direct recruitment in Group 'C' posts and in Group 'D' posts in Government Department/Boards/Corporations/Co-
operative Federations/Public Sector Undertakings/Urban Local Bodies/Panchayati Raj Institutions shall be kept aside for adjustment from amongst retrenched employees.
5. The adjustment of employees retrenched from Boards/Corporations/Public Sector Undertakings including Co- operative Federations would be treated as a special case in itself in the public interest. The adjustment of retrenched employees shall be at the 5 of 10 ::: Downloaded on - 31-12-2018 21:23:51 ::: CWP No. 2460 of 2017 6 discretion of the Government and such employees will have no legal right in this regard. Therefore, all Departments/ Boards/State Public Sector Undertakings and other Government organizations would send a requisition for the number of posts to be filled up from amongst the retrenched employees to a Screening Committee to be constituted for the purpose.
6. The adjustment of the employees shall be as a one time measure.
7. The Screening Committee shall devise a scheme with the approval of Chief Minister, on the basis or following broad parameters for adjustment of the retrenched employees, namely:-
(i) The adjustment shall be made either on an equivalent post carrying the same designation and nature of duties or on a lower post as per the availability of the vacancies subject to the condition that an employee occupying Group C post at the time of retrenchment shall not be considered for adjustment on a Group D post. The prescribed qualifications and age requirements for the purpose of adjustment of the retrenched employee shall be relaxed in view of his/her past experience in case of equivalent post.
However, adjustment of a retrenched employee on a non- equivalent post shall be subject to his/her fulfilling the prescribed qualifications for the concerned post.
(ii) The adjustment shall be made either on an equivalent post carrying the same designation and nature of duties or on a lower post as per the availability of the vacancies subject to the condition that an employee occupying Group 'C' post at the time of retrenchment shall not be considered for adjustment on a Group 'D' post as per appropriate term and conditions.
(iii) Group 'D' retrenched employees shall be considered for adjustment against Group 'D' vacancies and the concept of equivalence of post shall not be applicable.
(iv) The eligible persons shall be considered for adjustment on the basis of seniority of age.
8. The adjustment would be subject to the submission by the retrenched employee of an affidavit declaring that the adjustment so provided 6 of 10 ::: Downloaded on - 31-12-2018 21:23:51 ::: CWP No. 2460 of 2017 7 would be considered as a fresh appointment and he/she would not claim before of past service for the period prior to retrenchment or for the period he/she remained out of service as a result of retrenchment in any manner.
9. The Group 'C' posts in Government Departments/Boards/ Corporations etc. against which the retrenched employees are to be adjusted as a consequence of this policy, shall be excluded from the purview of the Haryana Staff Selection Commission with effect from 18.5.2006.
10. This policy is in supersession of any other policy in existence and shall come into effect from 18th May, 2006.
A bare perusal of the above policy clearly reveals that the adjustments of employees retrenched from Boards/Corporations etc were treated as special case in intself in the public interest. The adjustment of the retrenched employees was at the discretion of the Governed and such employees were having no legal right in this regard.
Further in the appointment letters issued to the the petitioners it has been clearly mentioned in condition No. 2 that 'Your appointment is made afresh on available Group C post and you will be entitled to draw minimum pay of the post being offered. Accordingly, you will not claim any benefit of the psst 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."
The petitioners have even given affidavits to the effect that they are accepting the terms and conditions of above cited policy as well as offere of appointment declaring that they would not claim benefit of past service for the period prior to retrenchment or for the period you remained out of service as a result of retrenchment in any manner.
The petitioners were retrenched in the year 2002 and were 7 of 10 ::: Downloaded on - 31-12-2018 21:23:51 ::: CWP No. 2460 of 2017 8 offered fresh appointment letters in the year 2007 after a gap of almost 05 years, as per policy dated 21.06.2006.
This issue has been considered in detail by this Court in LPA No. 570-2012 and observed as under:-
"By occupying large number of posts, which were taken out of purview of the Haryana Staff Selection Commission, in a way they deprived the young generation from getting employment against the posts. As per Clause No.8, it is specifically stated that adjustment would be subject to their filing an affidavit stating that adjustment so provided would be considered as fresh appointment and he/she would not be given benefit of past service for the period he/she remained out of service as a result of retrenchment in any manner. Filing of that affidavit was a condition precedent to get re-employment. All the appellants filed affidavits in terms of the conditions mentioned above. Thereafter, they were taken back into service. If that is so, by entering into service subject to a condition, they cannot turn around and say that condition was bad. They should have challenged the condition before accepting offer made by the Government. It was not so done. Otherwise also, it is an admitted fact that all the employees, when retrenched had received retrenchment compensation. There was a break in their service ranging from two to four years and they were out of service for the said period. If that is so, the condition appears to be justified. They were not asked to return the amount so received by them by way of retrenchment compensation.
When rejecting their case, it was specifically noticed by the authorities that their case is not similar to the one set up by them because in those cases employees were taken into Government service by transfer/absorption from one department to another or from Public Sector to State and before their retrenchment, retrenchment compensation was not given to them. Whereas in the case of appellants, they were sent out
8 of 10 ::: Downloaded on - 31-12-2018 21:23:51 ::: CWP No. 2460 of 2017 9 of service on account of Corporations, in which they were employed, going in loss and of which there was no chance of revival. It was also noticed that before their names were considered for re-employment, all the employees gave an undertaking that they would not claim benefit of past service. It is also not in dispute that the employees were not asked to re- deposit the compensation amount received by them with the State Authorities. The learned Single Judge has rightly, by taking note of ratio of judgment of the Supreme Court in State of Haryana v. Deepak Sood & Others (Civil Appeal No. 4446 of 2008, decided on 15.7.2008) said that condition imposed was not irrational and was perfectly justified. In the case of Deepak Sood (supra), there was no disruption in service. The employees were taken into service before closure of Corporation in which they were working. Retrenchment compensation was not paid to them.
Reliance of counsel for the appellants on the judgment of Supreme Court in Balmer Lawrie & Co. Ltd. v. Partha Sarathi Sen Roy and Others 2013(2) S.C.T. 231 is also of no help to the present appellants. That was the case in which service of an employee was terminated in terms of conditions of services. That was not a case of closure of corporation and adjusting a retrenched employee. In the present case, Corporations in which the appellants were working went into loss. Those were closed. Retrenchment compensation was paid as per Rules and thereafter a favour was shown to the appellants by taking them back into service in a way denying opportunity of entry into service to large number of young persons. In the case of Balmer Lawrie (supra), situation was altogether different. Taking note of that case, it was said by the Supreme Court that service conditions need to be fair and reasonable. That was a case of entry in service. But in the present case, it is re-entry into service after retrenchment. Filing of an affidavit by the appellant not to claim past benefit was a condition precedent to get re-entry in service. It is not open for the appellants to challenge the same at this stage.
9 of 10 ::: Downloaded on - 31-12-2018 21:23:51 ::: CWP No. 2460 of 2017 10 In the present case as well, the petitioners were paid compensation after retrenchment and after their retrenchment, they were given fresh appointment letters and as per Clause No.8 of the appointment letters, it is specifically stated that adjustment would be subject to their filing an affidavit stating that adjustment so provided would be considered as fresh appointment and he/she would not be given benefit of past service for the period he/she remained out of service as a result of retrenchment in any manner. They even gave their affidavits to this effect.
Thus, for all intents and purposes, the petitioners have no right to claim now the benefit of past service rendered by them in HSMITC for the purpose of pension and other retiral benefits.
No merits.
Dismissed.
14.11.2018
G Arora (RITU BAHRI)
JUDGE
Whether speaking/reasoned Yes
Whether reportable No
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