Punjab-Haryana High Court
State Of Haryana And Others vs Dalel Singh on 27 January, 2012
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH.
LPA No. 1865 of 2011 (O&M)
Date of Decision: January 27, 2012
State of Haryana and others
...Appellants
Versus
Dalel Singh
...Respondent
CORAM: HON'BLE MR. JUSTICE M.M. KUMAR
HON'BLE MR. JUSTICE AJAY KUMAR MITTAL
Present: Mr. Vinod S. Bhardwaj, Addl. AG, Haryana,
for the appellants.
1. To be referred to the Reporters or not?
2. Whether the judgment should be
reported in the Digest?
M.M. KUMAR, J.
1. The State of Haryana and its officers have filed the in- stant appeal under Clause X of the Letters Patent against the judg- ment dated 30.9.2010 rendered by the Single Judge holding that the case of the petitioner-respondent ought to have been consid- ered sympathetically for grant of pensionary benefits in view of the fact that he has served the State of Haryana for 25 years and 10 months and for a period of 3 years from 1974 to 1977. Accordingly, the learned Single Judge allowed the writ petition and directed the appellants to regularise the services of the petitioner-respondent in terms of policy dated 5.11.1999 (P-11). A further direction has been issued to the appellants to calculate and disburse pensionary LPA No. 1865 of 2011 (O&M) 2 benefits of the petitioner-respondent within a period of six months from the date of receipt of a certified copy of the order.
2. The undisputed facts of the case are that on 12.12.1974 the petitioner-respondent submitted an application before the Exec- utive Officer, Panchayat Samiti, Pundri. Along with the application, he also submitted attested copies of the Matriculation certificate and training certificate obtained from the Patwar School for the pe- riod 1.9.1968 to 28.2.1969. On 18.12.1974, the petitioner-respon- dent was appointed as a Patwari in the pay scale of ` 110-225 against a vacant post. Later on it was discovered that the petition- er-respondent had failed in Paper No. 4 of Patwari. On 18.7.1970, the Director, Panchayats, Haryana dispensed with the services of the petitioner-respondent holding that his appointment could not be regularised by giving relaxation in the said paper.
3. On 20.8.1979, the Deputy Commissioner, Kurukshetra, again appointed the petitioner-respondent as a Patwari in Kaithal Block on ad hoc basis. However, the order of appointment was not sent to the Director, Panchayats for approval. Thereafter the peti- tioner-respondent continued to serve the State of Haryana. On 11.3.2005, the Deputy Commissioner, Karnal, passed an order ter- minating the services of the petitioner-respondent by observing that he has obtained the appointment illegally in collusion with the employees of the office by concealing the fact that he has failed in Paper No. 4 and could not have been appointed as Patwari (P-9). However, the said order was not given effect to upto 30.6.2005 in view of the fact that the petitioner-respondent had filed CWP No. 3847 of 2005 and his termination was stayed. Later on the said LPA No. 1865 of 2011 (O&M) 3 writ petition was dismissed as withdrawn with liberty to file a fresh writ petition by challenging the termination order dated 11.3.2005.
4. The petitioner-respondent challenged the order dated 11.3.2005 (P-9) in the writ petition relatable to the instant appeal. In the writ petition, reliance was placed on the policy instructions dated 5.11.1999, which provides that the services of those Group 'C' employees could be regularised who have served the State of Haryana for a minimum period of fifteen years, even if they do not fulfill the educational qualifications, as a personal measure to them (P-11). However, a rider has been put in the said policy instructions that such an employee must be recruited through Employment Ex- change or directly appointed by the appointing authority after ob- taining non-availability certificate from the Employment Exchange.
5. The learned Single Judge has found that the petitioner- respondent was neither recruited through the Employment Ex- change nor he was directly appointed by the appointing authority after obtaining non-availability certificate from the Employment Ex- change. A categorically finding has been recorded by the learned Single Judge that the petitioner-respondent has served the State of Haryana for an uninterrupted period of 25 years 10 months as an ad hoc employee. After placing reliance on para 7 of the judgment rendered in the case of Bimal Kumar v. State of Haryana and anoth- er, 1996(2) RSJ 290, learned Single Judge came to the conclusion that even if the name of an employee has not been routed through Employment Exchange, it cannot be construed a serious objection in view of the fact that the employee had rendered service for such a long duration. The learned Single Judge also negatived the stand LPA No. 1865 of 2011 (O&M) 4 of the appellant State of Haryana that the services of the petitioner- respondent could not be regularised in view of the judgment of Hon'ble the Supreme Court rendered in the case of Secretary, State of Karnataka v. Umadevi, (2006) 4 SCC 1, because in Umadevi's case (supra) an exception has been carved out in respect of those employees who have put in more than 10 years of service, and it has been held that the State can formulate policy to regularise their services. The learned Single Judge has found that in the present case, the policy (P-11) was already in existence. The learned Single Judge allowed the writ petition filed by the petitioner-respondent by observing as under:
" If the petitioner was lacking necessary educa- tional qualification and his name was not routed through Employment Exchange, it was incumbent upon the offi- cials not to give appointment to the petitioner. It was ex- pertise and proficient knowledge skill of the petitioner which had impressed his immediate officials. Therefore, they allowed him to continue in service. Had the petition- er been a bad worker, his services would have been dis- pensed with by the officials of the State. The petitioner who had served the State of Haryana to the best of his ability for more than twenty five years and was near the age of superannuation cannot be shown the door and turned out. From August, 1979 to June, 2005, many offi- cials occupied the post of Deputy Commissioner. In the hierarchy of the revenue officials, Patwari is under Ka- nungo, Naib Tehsildar, Tehsildar and other officials. Even LPA No. 1865 of 2011 (O&M) 5 the Sub Divisional Magistrate acts as Assistant Collector Grade II. They all not only allowed the petitioner to serve the State but also deployed him at various places for fur- therance of the interest of the State. What is the justifi- cation for the officials of the State after about 26 years to open the case when the petitioner had superannuat- ed. Therefore, the petitioner cannot be denied the bene- fit of regularisation under policy, Annexure P11. It was necessary for the State to have considered the case of the petitioner sympathetically. The very fact that peti- tioner served the State of Haryana for 25 years and 10 months and for a period of 3 years i.e. from 1974 to 1977 is sufficient to hold that he should be allowed pen- sionary benefits. The petitioner had served the State of Haryana for almost three decades."
6. We have heard Mr. Vinod S. Bhardwaj, learned Additional Advocate General, Haryana at some length and perused the paper book with his able assistance. We are of the considered view that there is no legal infirmity in the view taken by the learned Single Judge warranting interference by this Court. Learned counsel has not been able to controvert the fact that the petitioner-respondent has served the appellant State of Haryana without any interruption from 20.8.1979 to 30.6.2005 (25 years 10 months and 11 days) on ad hoc basis. He had also rendered his services from 18.12.1974 to 17.3.1977 (2 years 2 months and 29 days). If the total period of service rendered by the petitioner-respondent is counted it comes to 28 years 1 month and 10 days. The learned Single Judge has LPA No. 1865 of 2011 (O&M) 6 rightly observed that the petitioner-respondent has served the State of Haryana to the best of his ability and when he was near the age of superannuation, he has been shown the door and turned out. All the officers in the hierarchy allowed him to serve the State and deployed him at various places. Accordingly, we find that there is no merit in the instant appeal and the same does not warrant ad- mission. Accordingly, this appeal fails and the same is dismissed.
(M.M. KUMAR)
JUDGE
(AJAY KUMAR MITTAL)
January 27, 2012 JUDGE
PKapoor