Punjab-Haryana High Court
Vijaya Kaul vs State Of Haryana And Others on 25 February, 2012
Author: Augustine George Masih
Bench: Augustine George Masih
CWP No. 455 of 2011 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH.
CWP No. 455 of 2011
Date of Decision : February 25, 2012
Vijaya Kaul
.... PETITIONER
Vs.
State of Haryana and others
..... RESPONDENTS
CORAM : HON'BLE MR. JUSTICE AUGUSTINE GEORGE MASIH
Present : Mr. Ajay Shekhawat, Advocate,
for the petitioner.
Mr. Harish Rathee, Sr. DAG, Haryana.
AUGUSTINE GEORGE MASIH, J. (ORAL)
Petitioner has approached this Court praying for quashing of the orders dated 04.03.2010 (Annexure P-11) and 29.07.2010 (Annexure P-13), vide which the claim of the petitioner for adjustment to the post having a pay scale of ` 5500-9000 has been rejected.
It is the contention of the petitioner that persons, who were similarly situated, have also been adjusted in the pay scale of CWP No. 455 of 2011 2 ` 5000-7850, which is a post of an Assistant and the same was available in the office of the Additional Labour Commissioner, Gurgaon, where the petitioner was offered appointment by the respondents vide letter dated 13.10.2006 (Annexure R-2/1). Petitioner contends that she was working as a Sales Girl in the Haryana Small Scale Industries and Export Corporation Ltd. (hereinafter referred to as 'Export Corporation') and was posted at Black Partridge Haryana Emporium, New Delhi when her services were retrenched on 30.06.2002. Thereafter, as per the Policy of the Government dated 21.06.2006, a scheme was framed 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 01.03.2000 to 01.03.2005. According to Clause 7 (i) of the scheme, petitioner was entitled to adjustment 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.
Petitioner was offered appointment to the post of Clerk in the pay scale of ` 3050-75-4590 vide order dated 13.10.2006 in the office of the Additional Labour Commissioner, Gurgaon. In pursuance thereto, she joined the same on 06.12.1986 as she had no option at that stage. Thereafter, she made various CWP No. 455 of 2011 3 representations to the respondents that when she was appointed as a Clerk, there were three posts of Assistant in the pay scale of ` 5000-7850 lying vacant against which the petitioner should have been appointed as per the scheme dated 21.06.2006. This claim of the petitioner was rejected by the respondents vide the impugned orders dated 04.03.2010 and 29.07.2010 leading to the filing of the present writ petition, which, according to the petitioner, these orders cannot sustain as the same violates the scheme itself.
On the other hand, counsel for the respondents although on the basis of the written statement, does not dispute the fact that three vacancies of Assistant were available in the office of the Additional Labour Commissioner when petitioner was offered the post of Clerk but he contends that it does not confer a right upon the petitioner for appointment to the said post. His further contention is that the petitioner should have made a grievance in the year 2006 or within some reasonable time whereas she had made a claim in the year 2010 only, when the claim was rejected. His further contention is that the petitioner having accepted the offer of appointment and joined the same on 06.12.2006 as a Clerk (Annexure R-2/2), cannot now be permitted to claim appointment to a higher post.
Counsel for the petitioner has disputed the assertion of the counsel for the respondents that the petitioner had first made her claim for appointment to a higher post in the year 2010. He contends that as a matter of fact, petitioner had first represented on 22.03.2007 and thereafter on 19.01.2009, 01.07.2009 and CWP No. 455 of 2011 4 20.07.2009, which was followed by further request on 17.02.2010, 21.04.2010 and 23.06.2010.
I have heard the counsel for the parties and have gone through the records of the case.
The basic facts, which are required for adjudication of the present matter, are not in dispute. As per the admitted facts, petitioner was working in the Export Corporation as a Sales Girl in the pay scale of ` 5500-9000. She was retrenched in the year 2002. Thereafter, Policy decision was taken by the Government of Haryana to re-employ such retrenched employees. A scheme dated 21.06.2006 for re-employment of regular retrenched Group C and D employees of Boards/Corporations/Public Sector Undertakings etc. who were retrenched during the period from 01.03.2000 to 01.03.2005, was to be considered and as per the said scheme, claim of the petitioner was duly considered for re-employment. Clause 7 of the scheme, which deals with the parameters of adjustment of the retrenched employees, reads as follows:-
"7. The Screening Committee shall devise a scheme with the approval of Chief Minister, on the basis of 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 CWP No. 455 of 2011 5 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."
A perusal of the above would show that effort was to be CWP No. 455 of 2011 6 made by the Screening Committee to adjust the retrenched employees 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. The fact that three posts of Assistant were lying vacant in the office of the Additional Labour Commissioner, Gurgaon, where the petitioner was appointed as a Clerk, has not been disputed. It is also not disputed that similarly placed retrenched employees have been adjusted in the pay grade of ` 5000-7850, claim of the petitioner for appointment to the available posts of Assistant, which are in the grade of ` 5000-7850, should have been considered and she should have been appointed on the said post as she fulfills the requirement for the said post. Her claim being covered by Clause 7 of the scheme, the appointment granted to the petitioner on the post of Clerk despite there being post of Assistant available, cannot sustain.
In view of the above, the claim made by the petitioner is allowed. She is held entitled to appointment on the post of Assistant with effect from the date she was appointed on the post of Clerk i.e. 13.10.2006. Arrears shall, however, be restricted to 38 months from the date of filing the writ petition. Since the petitioner has retired on 30.04.2011, the consequential benefits, which would include retiral benefits, be granted to her within a period of four months from the date of receipt of certified copy of this order.
CWP No. 455 of 2011 7
(AUGUSTINE GEORGE MASIH )
February 25, 2012 JUDGE
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