Punjab-Haryana High Court
Jai Narain Kaushik And Others vs State Of Haryana And Another on 4 February, 2014
Bench: Jasbir Singh, Harinder Singh Sidhu
In the High Court of Punjab and Haryana, at Chandigarh
1. Letters Patent Appeal No. 570 of 2012 (O&M)
Jai Narain Kaushik and Others
... Appellants
Versus
State of Haryana and Another
... Respondents
2. Civil Writ Petition No. 14624 of 2013 Sushil Kumar Rastogi ... Petitioner Versus State of Haryana and Others ... Respondents
3. Civil Writ Petition No. 14630 of 2013 Gulshan Kumar ... Petitioner Versus State of Haryana and Others ... Respondents
4. Civil Writ Petition No. 16953 of 2013 Albel Singh and Others ... Petitioner Versus State of Haryana and Others ... Respondents
5. Civil Writ Petition No. 17101 of 2013 Santosh Rohilla ... Petitioner Versus State of Haryana and Others ... Respondents Bhardwaj Deepak Kumar 2014.02.20 12:15 I attest to the accuracy and integrity of this document Letters Patent Appeal No. 570 of 2012 (O&M) 2 And Other connected Writ Petitions
6. Civil Writ Petition No. 17162 of 2013 Virender Singh Yadav and Others ... Petitioner Versus State of Haryana and Others ... Respondents
7. Civil Writ Petition No. 23993 of 2013 Ramesh Kumar and Others ... Petitioners Versus State of Haryana and Others ... Respondents
8. Civil Writ Petition No. 25090 of 2013 Dev Raj and Others ... Petitioners Versus State of Haryana and Others ... Respondents
9. Civil Writ Petition No. 26174 of 2013 Ravinder Kumar Manchanda and Others ... Petitioners Versus State of Haryana and Others ... Respondents
10. Civil Writ Petition No. 28667 of 2013 Sudhir Kumar Sehgal and Others ... Petitioners Versus State of Haryana and Others ... Respondents Bhardwaj Deepak Kumar 2014.02.20 12:15 I attest to the accuracy and integrity of this document Letters Patent Appeal No. 570 of 2012 (O&M) 3 And Other connected Writ Petitions AND
11. Civil Writ Petition No. 793 of 2014 Jagbir Singh and Others ... Petitioners Versus State of Haryana and Others ... Respondents Date of Decision: 4.2.2014 CORAM: Hon'ble Mr. Justice Jasbir Singh.
Hon'ble Mr. Justice Harinder Singh Sidhu. Present: Mr. Rohit Khanna, Advocate for the appellants (In LPA No.570 of 2012).
Mr. Suvir Sehgal, Advocate for the petitioners (In CWP Nos. 14624, 14630, 16953, 17101 & 17162 of 2013).
Mr. Jarnail S. Saneta, Advocate for the petitioners (In CWP Nos. 23993, 25090, 26174 & 28667 of 2013 and 793 of 2014). Mr. S.S.Pattar, Senior Deputy Advocate General, Haryana, for the State of Haryana. Mr. Sandeep Goyat, Advocate for respondent-Board of School Education, Haryana.
Jasbir Singh, Judge (Oral) This order will dispose of Letters Patent Appeal No. 570 of 2012 titled as "Jai Narain Kaushik and Others v. State of Haryana and Another" and ten writ petitions viz. Civil Writ Petition Nos. 14624 of 2013 titled as "Sushil Kumar Rastogi v. State of Haryana and Others", No. 14630 of 2013 titled as "Gulshan Kumar v. State of Haryana and Bhardwaj Deepak Kumar 2014.02.20 12:15 I attest to the accuracy and integrity of this document Letters Patent Appeal No. 570 of 2012 (O&M) 4 And Other connected Writ Petitions Others", No. 16953 of 2013 titled as "Albel Singh v. State of Haryana and Others", No. 17101 of 2013 titled as "Santosh Rohilla v. State of Haryana and Others", No. 17162 of 2013 titled as "Virender Singh Yadav and Others v. State of Haryana and Others", No. 23993 of 2013 titled as "Ramesh Kumar and Others v. State of Haryana and Others", No. 25090 of 2013 titled as "Dev Raj and Others v. State of Haryana and Others", No. 26174 of 2013 titled as "Ravinder Kumar Manchanda and Others v. State of Haryana and Others", No. 28667 of 2013 titled as "Sudhir Kumar Sehgal and Others v. State of Haryana and Others" and No. 793 of 2014 titled as "Jagbir Singh and Others v. State of Haryana and Others", as the common questions of law and facts are involved therein. To dictate order, facts are being taken from Letters Patent Appeal No. 570 of 2012.
Between the year 2002 to 2004, three Corporations, owned by the State of Haryana i.e. Haryana State Minor Irrigation Tubewell Corporation (HSMITC), Haryana State Cooperative Consumer Federation Limited (CONFED) and Haryana Mines and Minerals Corporation Limited (HMMCL), went into loss. All the three were the monopoly Corporations dealing with specific sphere of activities in which private entrepreneurs were not making any participation. Even then all the Corporations failed to yield requisite results. Service to the consumers was not provided and they failed to attract requisite finances. In such like situation who is to be blamed? Definitely, the persons who were working in those Corporations. Inference would be that Bhardwaj Deepak Kumar 2014.02.20 12:15 I attest to the accuracy and integrity of this document Letters Patent Appeal No. 570 of 2012 (O&M) 5 And Other connected Writ Petitions commitment was lacking in them.
After retrenchment of the appellants, they got retrenchment compensation. After a break in service ranging from two to four years, a favour was shown to them. They were taken back into service under a Scheme to re-employ retrenched Group 'C' and 'D' employees of Boards/Corporations/Public Sector Undertakings etc. who were retrenched during the above said relevant period, subject to the following terms & conditions:
"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 Federation 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 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/ Panchayat Raj Institutions shall be kept aside for Bhardwaj Deepak Kumar 2014.02.20 12:15 I attest to the accuracy and integrity of this document Letters Patent Appeal No. 570 of 2012 (O&M) 6 And Other connected Writ Petitions 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 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 one time measure.
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 a equivalent post carrying the same designation and nature of duties or on a lower post as per the availability of the Bhardwaj Deepak Kumar 2014.02.20 12:15 I attest to the accuracy and integrity of this document Letters Patent Appeal No. 570 of 2012 (O&M) 7 And Other connected Writ Petitions 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 or the concerned post.
(ii) The adjustment shall be made either on a 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.
Bhardwaj Deepak Kumar 2014.02.20 12:15 I attest to the accuracy and integrity of this document Letters Patent Appeal No. 570 of 2012 (O&M) 8 And Other connected Writ Petitions
(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 would be considered as a fresh appointment and he/she would not claim benefit 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." By occupying large number of posts, which were taken out of purview of the Haryana Staff Selection Commission, in a way they Bhardwaj Deepak Kumar 2014.02.20 12:15 I attest to the accuracy and integrity of this document Letters Patent Appeal No. 570 of 2012 (O&M) 9 And Other connected Writ Petitions 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.
The appellants/petitioners, by filing Civil Writ Petition No. 24484 of 2011, claimed benefit of past services under the facts mentioned above. Their prayer was declined by the learned Single Judge vide order dated 24.1.2012. It was specifically noticed that the condition imposed, not to give benefit of past service, was perfectly justified. It was further noticed that before filing of above said writ Bhardwaj Deepak Kumar 2014.02.20 12:15 I attest to the accuracy and integrity of this document Letters Patent Appeal No. 570 of 2012 (O&M) 10 And Other connected Writ Petitions petition, their case was considered by the Finance Department and their representation was rejected on 11.7.2011. The learned Single Judge extracted following portion of that report in his judgment, which reads thus:-
"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 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 Bhardwaj Deepak Kumar 2014.02.20 12:15 I attest to the accuracy and integrity of this document Letters Patent Appeal No. 570 of 2012 (O&M) 11 And Other connected Writ Petitions 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. Bhardwaj Deepak Kumar 2014.02.20 12:15 I attest to the accuracy and integrity of this document Letters Patent Appeal No. 570 of 2012 (O&M) 12 And Other connected Writ Petitions 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 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."
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 Bhardwaj Deepak Kumar 2014.02.20 12:15 I attest to the accuracy and integrity of this document Letters Patent Appeal No. 570 of 2012 (O&M) 13 And Other connected Writ Petitions Sector to State and before their retrenchment, retrenchment compensation was not given to them. Whereas in the case of appellants, they were sent out 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 Bhardwaj Deepak Kumar 2014.02.20 12:15 I attest to the accuracy and integrity of this document Letters Patent Appeal No. 570 of 2012 (O&M) 14 And Other connected Writ Petitions 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.
No case is made out to cause interference by this Court in the present appeal and the writ petitions mentioned above.
Dismissed.
(Jasbir Singh) Judge (Harinder Singh Sidhu) Judge February 4, 2014 "DK"
Bhardwaj Deepak Kumar 2014.02.20 12:15 I attest to the accuracy and integrity of this document