Laxman Dass vs Haryana State Through Collector … on 6 July, 2009

RSA No. 184 of 2009                                                            1

IN THE HIGH COURT OF PUNJAB & HARYANA, CHANDIGARH

                                R.S.A. No. 184 of 2009
                                Date of Decision: July 06, 2009



Laxman Dass                                         ...........Appellant

                               Versus


Haryana State through Collector and others           ..........Respondents



Coram:       Hon'ble Mrs. Justice Sabina

Present: Mr.Hari Om Attri Advocate for the Appellant.

                               **

Sabina, J.

Plaintiff-Laxman Dass filed a suit for declaration, seeking

regularization of his service. The suit of the plaintiff was dismissed by the

Civil Judge (Junior Division) Hisar vide judgment and decree dated

28.3.2006. In appeal, the said judgment and decree were upheld by the

learned Additional District Judge, Hisar vide judgment and decree dated

23.10.2008. Hence, the present appeal.

The case of the parties, as noticed by the learned Additional

Distinct Judge, Hisar in paras 2 and 3 of its judgment reads as under:-

” 2.The facts of the plaintiff’s case, in brief, are that the plaintiff

was working as part time sweeper since 1991-92 in the office of

the Inspecting Officer, Agriculture Department, Haryana Agmark

Lab. Hisar. During 10 years of his service, there is no complaint

about his work and conduct. The plaintiff made requests and

representations to defendants No. 2 to 5 for regularization of his
RSA No. 184 of 2009 2

services in view of the Government Policy i.e. Regularization of

Part time Group D employees” but without any action. The

Hon’ble Punjab and Haryana High Court has directed the State

Government to draw up a policy for regularization of the services

of Group-D part time employees within three months and also to

lay down the criteria and conditions vide which the eligible

persons shall be entitled to hold post on regular basis, in its

judgment dated 24.2.1998 delivered in CWP No. 15602 of 1997

titled Mange Ram and others vs. State of Haryana and others. The

State Government in compliance of the above said judgment, laid

down the policy vide C.S.No. 6/47/98-1 GSI dated 1.2.1999 for

regularization of the services of group-D part time employees

working in all the department on the terms and conditions

mentioned in Annexure -I. It was averred that the plaintiff fulfills

all the conditions required for appointment on regular post of

sweeper cum chowkidar. The plaintiff also moved application to

the Director of Agriculture, defendant No.3, though proper

channel, requesting for considering his name for the post of

Sweeper lying vacant in the office of defendant No.5 but his

name has not been considered. The plaintiff, through his counsel,

sent first legal notice dated 10.5.2001, second legal notice dated

1.10.2001 to the defendants but to no avail and hence the present

suit seeking a decree to the effect that the plaintiff is entitled to be

regularized on the post of Sweeper as per the State Government

Police. Relief of permanent injunction was also sought to the

effect that the defendants be restrained from terminating his
RSA No. 184 of 2009 3

services till final decision of the suit.

3. On notice, defendants appeared and filed joint

written statement contesting the suit of the plaintiff taking various

preliminary objections that the plaintiff has no cause of action and

locus standi to file the suit, the suit is not maintainable in the

present form, the plaintiff is estopped by his own act and conduct

and that the plaintiff has not come to the court with clean hands

and has suppressed material facts and therefore is not entitled to

any relief. It was averred that the plaintiff was directly

appointed by Sh.Amandeep Singh, the then Inspecting Officer,

Agmark Laboratory, Hisar without calling applications through

Employment exchange or without obtaining the non availability

certificate from Employment exchange and the appointment of the

plaintiff as part time employee was in violation of the service

rules and,therefore, the plaintiff can not claim any right against

the defendants. The plaintiff does not fulfill the conditions laid

down by the State Government in the policy issued on the

directions of the Hon’ble High Court. The suit of the plaintiff is

also premature. All other allegations were specifically denied and

prayed that the suit be dismissed with costs.”

On the pleadings of the parties, the following issues were

framed by the trial Court:-

“1. Whether the plaintiff is entitled to be regularized in the service

as per the policy laid down by the State Government vide

C.E.Hr.No.6/47/98-1GSI dated 1.2.1999?OPP

2. If issue No.1 is proved, whether the plaintiff is entitled for
RSA No. 184 of 2009 4

permanent injunction restraining the defendants from terminating

the service of the plaintiff?OPP

3. Whether the plaintiff has no locus standi and cause of action to

file the present suit?OPD

4. Whether the suit of the plaintiff is not maintainable in the

present form?OPD

5. Relief.”

After hearing the learned counsel for the appellant, I am of

the opinion that there is no merit in this appeal.

Appellant was working as part time sweeper with the

respondents since 1991-92. Plaintiff sought regularization of his service in

terms of the policy of the State Government dated 1.2.1999. The said policy

had been reproduced by the trial Court in para 8 of its judgment and it reads

as under:-

“Whenever a Group `D’ post becomes available in some

institution/department/ office of the State Government, where a

part time employee is working and has completed atleast 5 years

continuous service on the date of issue of these instructions he/she

shall be given preference for being considered for regular

appointment against the post subject to all other things vis-a-vis

the other candidates being equal and further subject to his/her

fulfilling the following conditions:-

i) that the employee should have been recruited through the

Employment Exchange or directly appointed by the appointing

authority after obtaining the non availability certificate from the

Employment Exchange;

RSA No. 184 of 2009 5

ii) that the employee possesses the prescribed qualification for the

post;and

iii)that the work and conduct of such employee has been

satisfactory.”

After going through the evidence led by the parties, both the

Courts have found that the appellant was given appointment without taking

the non-availability certificate from the Employment Exchange. As per the

policy in question, the appellant did not possesses the prescribed

qualification for the post i.e. middle standard examination certificate.

There was no vacant post with the respondents against which the appellant

could be regularized. In these circumstances, both the Courts below have

rightly dismissed the suit of the plaintiff.

No substantial question of law arises in this regular second

appeal which would warrant interference by this Court . Accordingly, this

appeal is dismissed.

( Sabina )
Judge

July 06, 2009

arya