IN THE PUNJAB & HARYANA HIGH COURT AT CHANDIGARH
CIVIL WRIT PETITION 17343 OF 2007
DECIDED ON : 28-11-08
Jai Parkash
....Petitioner
versus
The State of Haryana & others
....Respondents
CORAM : HON'BLE MR.JUSTICE UMA NATH SINGH
HON'BLE MR.JUSTICE K.KANNAN
Present: Shri Naveen Daryal, Advocate, for the petitioner
Shri Harish Rathee, Senior DAG, Haryana
K.KANNAN, J
I The nature of lis:
1.The issue involved in this case is whether the petitioner is entitled to
treat his services with the Haryana State Minor Irrigation and Tubewells Corporation
Ltd.(hereinafter referred to as the Corporation) as availing to be treated as continuous
service with the number of years of service at the Department of Prohibition and Excise
Commissioner. The answer to this is sought in the context of the entitlement of the
petitioner to the pensionary benefits by counting the total number of years of service in
both the Corporation and the Department.
II Terms and conditions of absorption:
2.The petitioner had been originally working with the Corporation as a
Driver on regular basis and when the functioning of the Corporation was scaled down,
several drivers had been rendered surplus and consequently absorbed with the Excise
Department. The Commercial Taxation Commissioner issued proceedings on 13-03-
1997 directing the appointment as surplus drivers of the Corporation with the Department
on the condition that the services shall be governed by the Haryana Excise and Taxation
Drivers State Services Group “C” Rules, 1980 (for short Rules 1980) and that the matter
regarding pay and conditions of their absorption would be referred to the Government.
The Government had ultimately decided that the pay drawn by the drivers in the
corporation would be protected and that they would be treated as fresh appointees and
CWP 17343 of 2007 –2–
that further no benefit of seniority would be given to them. It also specifically provided
that the benefit of pension could only be given to them after depositing the amount of
CPF in GP Fund along with interest. An affidavit/option in this respect was also taken
before joining.
III Attempt of recovery by Department thwarted by judicial verdict:
3. It is not in dispute that the petitioner had given such an undertaking and he was
absorbed in the department and he was subsequently superannuated. The trouble
started when the department passed an order on 03-02-1999 when some
recoveries were sought to be made on the ground that the petitioner had been
fixed on a higher scale of pay than what he was entitled to . The petitioner
successfully challenged the recovery proceedings in CWP 1717 of 2003 which
found the recovery to be illegal in terms of its earlier DB Ruling in Madan Lal
Goel and others versus State of Punjab and others reported in 1998(3) RSJ
135.
IV Rival contentions as regards computation of length of service:
4. Another problem surfaced when the petitioner had been superannuated and
the manner of drawing up pensionary benefits had been taken up for consideration.. His
past service in the Corporation was not reckoned for the length of service. The petitioner
complained of discriminatory treatment and challenged the same and sought for a
direction that the petitioner’s past service in the Corporation must also be reckoned for
computing the number of years of service and for the consequential benefits.
5. The Government objected to the claim of the petitioner on the ground that
the drivers selected by the department were offered appointments with the condition that
they would be treated as fresh appointees in the department for the purpose of seniority
and would not be given any benefit of past service. The counsel for the State laid
emphasis on the proceedings of the Financial Commissioner and Secretary to the
Government of Haryana marked as Annexure R-1 which laid down as follows:-
“i) The pay drawn by the Drivers in HSMITC will be protected;
ii) They will be treated as fresh appointees. No benefit of seniority will be
given to them;
CWP 17343 of 2007 –3–
Their seniority will be counted from the date of joining in this
department; and
v) Benefit of pension will only be given to them after depositing the
amount of CPF in GP Fund along with interest. An affidavit/option in
this respect may be taken before the joining.”
6.According to him, the petitioner was not, therefore, entitled to seek for
his service in the Corporation for working out the retiral benefits.
V Dispensation in Gurmail Singh’s case, effect
7.The transfer in re-employment of persons from the Corporation to the
Department with the States of Punjab and Haryana has been subject to serveral litigations
and one such litigation reached upto the Hon’ble Supreme Court and decided on 25-10-
1990 in Gurmail Singh and others versus State of Punjab & others reported in 1992
(7) SLR 744. While adverting to several other issues raised under the Industrial Disputes
Act, 1947, the Hon’ble Supreme Court had also issued directions to the State Government
that the operaters should be entitled to counting of their past services with the
Corporation for the purpose of computing of their salaries, length of service and retiral
benefits with the Department. The proceedings (Appendix R-1) which the counsel for the
State relies upon is no more than its stand that all the employees who had been working
with the Corporation should be treated as fresh appointees and that no benefit of
seniority would be given to them. From this, the counsel wants to contend that the
services of the petitioner rendered with the Corporation would be completely taken out of
reckoning. Yet another clause in the proceedings clearly spells out that the benefit of
pension could be given to them after depositing the amount of CPF in GPF along with
interest. It is nowhere stated that the past service would not be counted for pension. The
same aspect had been considered yet again in another judgement in CWP 1971 of 2000
wherein one Udhey Singh and 10 others had sought for the relief that their previous
service under the Corporation was to be counted for all purposes other than for inter se
seniority qua drivers already in employment with the Department of the State
Government. The writ petition had been allowed on 28-01-2002 placing reliance on the
decision of the Hon’ble Supreme Court in Gurmail Singh’s case (supra).
CWP 17343 of 2007 –4–
8.We are not persuaded to take any different view from how the matter has
been dealt with earlier in CWP 1971 of 2000 placing reliance on the judgement of the
Hon’ble Supreme Court. The petitioner’s claim is well founded and the writ petition is
allowed with the direction that the services of the petitioner with respondent
No.4,namely, Haryana State Minor Irrigation and Tubewells Corporation Ltd. Shall be
counted for computation of retiral benefits of pension etc.
The writ petition is allowed in the above terms.
Sd/- Sd/-
{Uma Nath Singh} {K.Kannan}
Judge Judge
28-11-2008
IN THE PUNJAB & HARYANA HIGH COURT AT CHANDIGARH
CIVIL WRIT PETITION 6537 OF 2008
DECIDED ON :27-11-08
Hardyal & others
....Petitioners
versus
State of Haryana and others
....Respondents
AND
CIVIL WRIT PETITION 8041 OF 2008
DECIDED ON : -11-08
Arun Kumar and others
....Petitioners
versus
State of Haryana and others
....Respondents
CORAM : HON'BLE MR.JUSTICE MEHTAB S GILL
HON'BLE MR.JUSTICE K.KANNAN
Present: Shri Ravinder Malik, Advocate, for the petitioners
Shri Harish Rathee, Senior DAG, Haryana
K.KANNAN, J
I Nature of Relief:
1.This judgement will dispose of CWPs Nos.6537 and 8041 of 2008 as the
petitioners in both the cases are similarly situated persons.
2.Petitioners 1 to 30 in CWP 6537 of 2008 and petitioners 1 to 10 in CWP
8041 of 2008 seek for regularisation of services with the respondents as Sweepers/Class-
IV employees.
II The rival contentions:
3.It is the contention of all the petitioners that they have been employed over a
period between 1984 to 1995 continuously in various schools run under the control of
respondents 1 to 3 and that having regard to the fact that they have been in continuous
service, they are entitled to be regularised. All the petitioners claim to have been
CWPs 6537 & 8041 of 2008 –2–
recommended through the concerned Employment Exchange and appointments were
done by adopting the due procedures for appointment of sweepers by persons who were
competent to appoint them. It was the contention that the posts of Sweepers came neither
within the perview of Staff Selection Commission nor the Haryana Public Service
Commission and that the appointments were made by the appointing authorities at their
own level by adopting suitable criteria for selection on being sponsored by Employment
Exchanges.
4.The Government opposes the relief sought for by the petitioners, placing
reliance on the judgement of the Hon’ble Apex Court in State of Karnataka versus Uma
Devi and others 2006(4) SCC 1 and contended that daily rated or contractual employees
were only temporary employees and had no right to the post or to be continued in service
to get absorption. Counsel for the State contends that the regularisation can even not be
made for class IV part time employee, whose services are availed only for a few hours.
III Uma Devi’s case not to be read as in conflict with Article 14
5.It is to be noted at the outset that the specific contention of the petitioners
is that they have been sponsored by the Employment Exchanges and that in the absence of
any specific Rules relating to appointment of Sweepers, the procedure for appointment
was undertaken by the competent authorities at their respective levels for employment in
schools under their control. The statement filed by the State does not bring out anywhere
any violation of any particular rule in the matter of appointment. The mere reliance of the
State on the decision of the Hon’ble Apex Court in Uma Devi’s case (supra) is neither
here nor there, since the decision does not go so far as to lay down as a general
proposition that persons who had been employed on regular basis and working for several
years or more than a decade would not be considered for regularisation under all
circumstances. The Hon’ble Supreme Court was laying down the law, while considering
pleas of regularisation, that mere length of service ought not to offer ground for
regularisation if the initial appointment was illegal or contrary to recruitment rules. No
Recruitment Rules have been shown by the respondents to have been flouted. It is not
denied by them that all the petitioners have been sponsored through Employment
Exchanges. On the other hand , it is pointed out by the petitioners that all the persons
CWPs 6537 & 8041 of 2008 –3–
who had been appointed along with them and were working in several schools in the
district of Kurukshetra and when the district was bifurcated and another district called
Yamuna Nagar was carved out of the erstwhile district, the persons in Yamuna Nagar
district had been regularised while the petitioners who stayed back in Kurukshetra district
had not been so regularised. The petitioners have filed the order of the Govt. as regards
the Sweepers in Yamuna Nagar district exhibited in Appendix P-3. They also, therefore
pleaded discriminatory treatment and relying upon the decision in UPSEB versus
Pooran Chander Pandey 2007(11) SCC 92 where the Hon’ble Supreme Court had laid
down that it would be purely unreasonable if the claim for regularisation is denied even
after a long period of service by practising discrimination for regularising one class of
persons and rejecting the claim of others. The Hon’ble Supreme Court was deciding the
claims of daily wage employees of Cooperative Electric Supply Society after it was
merged with the State Electricity Board and in the context of decision of the Electricity
Board to regularise the services of its employees working on daily wages on the existing
vacant posts in the State Board while denying such relief to the services of the employees
in the erstwhile Cooperative Electric Supply Society. The Hon’ble Supreme Court
cautioned “we have to read Uma Devi’s case in conformity with Article 14 of the
Constitution of India and we cannot read it in a manner which would make it incomplete
with Article 14. The Constitution is the Supreme Law of Land and any judgement not
even of the Hon’ble Supreme Court can violate the Constitution.”
IV Conclusion:
6.In the circumstances we hold that the petitioners’ claims for
regularisation have to await till the State’s policy consideration admits of creation of
adequate posts to all the petitioners and they shall be entitled to permanent absorption
with continuity in service when such an occasion arises.
These writ petitions are disposed of in the above terms.
Sd/- Sd/-
{Mehtab S Gill} {K.Kannan}
Judge Judge
27-11-2008
IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH
CIVIL WRIT PETITION 15715 OF 2008
DATE OF DECISION :27-11-2008
Ashok Kumar
....Petitioner
versus
State of Haryana and others
....Respondents
CORAM : HON'BLE MR.JUSTICE MEHTAB S GILL
HON'BLE MR.JUSTICE K.KANNAN
Present: Shri Tajender K Joshi, Advocate, for the petitioner
Shri Harish Rathee, Senior DAG,Haryana
K.KANNAN, J
I Relief claimed:
1. The petitioner seeks for issuance of writ of Certiorari to quash the order dated
04-04-2006 re-fixing the pay in the scale of Rs.2550-3200/-from the basic pay
scale of Rs.2650-4000/- and seeking for the relief of directing the respondents to
grant second ACP (Assured Career Progression) scales on the completion of 20
years of service taking into account the service rendered by the petitioner in
Municipal Committee, Rohtak before he was absorbed in the State service in the
year 1999.
II The contentions of the petitioner :
2. The contention of the petitioner is that he was appointed as Peon on 21-05-1983
and in the year 1999 when octroi was abolished in the State, the octroi staff
working in the Municipal Committee, Rohtak, had been rendered surplus and
adjusted by the Government through transfer in other departments and posted in
the scale of Rs.2550-3200/-. The petitioner had been granted the first ACP Scale
of Rs.800-1150/- which was revised as Rs.2650-4000/-. On an audit objection
regarding fixation of pay at Rs.2650-4000/-, the respondents sought to place him
in the grade of Rs.2550-3200 on the ground that only the pay protection was
available but not the grade. According to the petitioner, he had completed 20
years of service as on 21-05-2003 and became entitled to the second ACP Scale
–2–
of Rs.3050-4350/-but instead of granting the ACP Scale, he was fixed in the
scale of Rs.2550-3200/-and even the benefit of the first ACP scale was
withdrawn.
3.The further contention of the petitioner was that similarly situated persons had
filed CWP 15039 of 2003 and this Court vide its judgement dated 02-08-2005
allowed the writ petition and held that the persons were entitled to count the
services rendered in the Municipal Committee, Rohtak, for the purposes of
computing the period of service for the grant of ACP Scales. The State of
Haryana had filed SLP in Civil Appeals 4446 of 2008 and a batch of cases in
State of Haryana versus Deepak Sood and others in the Hon’ble Supreme Court
against the judgement in CWP 15039 of 2003 but it was also dismissed on 15-
07-2008. The petitioner, who had applied for premature retirement and also
retired on 31-08-2008 seeks for his computation of pension and other benefits to
be calculated after refixing the salary of second ACP Scale of Rs.3050-4350/-
III The response on behalf of the State:
4. The counsel for the State places reliance on the order of the Haryana
Panchayats Department dated 24-12-1999 (Annexure R-1) which states inter alia
that “he will not claim the benefit of his past service towards seniority. His inter
se seniority will be determined separately but his pay will be protected.” Show-
cause notice that has been issued on 04-07-2005 was on the assumption that the
period of service at the Municipal Committee, Rohtak,was not to be reckoned for
consideration of the claim of number of years for the application of ACP Scale.
The department also appears to have taken the view that the Hon’ble Apex Court
while disposing of Civil Appeals 4446 to 4448 of 2008 the State of Haryana
versus Deepak Sood had not considered the ACP Rules and that it was
contemplating to file a review petition.
IV Supreme Court judgement covers the field on ACP Scale:
The decision of the Supreme Court mentioned above has reasoned as follows :
“A perusal of these terms and conditions makes it clear that what is being
lost by these surplus staff is their seniortiy. They will have to get zero
seniority in the new department but their past service has been counted for
–3–
fixation of pay as well as pensionary benefits. The scheme of ACP grade
came subsequently. On that basis the respondents made a grievance that
they were being denied the benefit of ACP and the services rendered by
them in the Municipal Committee has not been counted for the purposes of
calculating 10/20 years of service in the department. It is misfortune that
the respondents have been declared surplus in the Municipal Committee,
Panipat but the Government has been benevolent to them and absorbed
them in the State Government but denied them the benefit of past service
for the purpose of seniority. However, at the same time they have counted
their past service for the purpose of pay and pensionary benefits. Once the
Government considered them eligible for fixation of pay and pensionary
benefit and counted their past service then there is no reason why ACP
grade should be denied to them. Having lost, at one hand their seniority in
the new department, it would be unfair to deny them the benefit of ACP
grade. When the Government counts their past service for grant of the
benefit of pay fixation and pension, there is no reason why their past
service should not be given the benefit of ACP grade.
A similar question came up before this Court in the case of (1)
Dwajen Chandra Sarkar and another versus Union of India and
another reported in AIR 1999 Supreme Court 598. In almost
identical situation a person was transferred to another department on
administrative grounds and his past service of 16 years was not
counted. He challenged the same and matter ultimately reached
before this Court and this Court after considering the matter came to
the conclusion that granting them higher grade under the Scheme for
time bound promotion does not, therefore, offend the condition
imposed in the transfer order. It was observed by this Court,”We
are, therefore, of the view that the appellants entitled to the higher
grade from the date on which they have complted 16 years and the
said period is to be computed on the basis of their total service both
in the Rehabilitation Department and the P & T Departments.”
CWP 15715 of 2008 –4–
Their Lordships referred to earlier judgements given by this Court i.e. in the case of Renu
Mullick versus Union of India 1994(1) SCC 373. In this case also in identical situation
the benefit was given to incumbent likewise in Raksha Mantri versus V.M.Joseph
reported in 1998(5) SCC 305 and in the case of A.P.State Electricity Board versus
R.Parthasarathi reported in 1998(9) SCC 425. The same principle was re-affirmed
recently in the case of State of Maharashtra and others versus Uttam Vishnu Pawar
(2008) 2 SCC 646 to which one of us (A.K.Mathur,J) was a party wherein in para 13 it
was observed as under:-
Therefore, in view of the consistent approach of this Court, it is no more res-integra that
the incumbent on transfer to the new department may not get the seniority but his
experience of the past service rendered will be counted for the purpose of other benefits
like promotion or for the higher pay scale as per the Scheme of the Government.”
The decision of the Hon’ble Supreme Court squarely governs the issue regarding the
application of ACP Scheme by including the number of years of service in Municipal
Committee, Rohtak,as availing to the persons employed in the Committee who were later
absorbed in the State Services. The impugned proceedings have originated from a wrong
understanding of terms and conditions laid down under the scheme of absorption. The
petitioner is entitled to the ACP Scales by including the entry into the service of the
Municipal Committee, Rohtak as the starting point of his employment and work out his
claim for ACP Scale accordingly.
V Re-fixation of Scale:
5. The first prayer in the writ petition is that the revised scale on absroption had been
wrongly made as Rs.2650-4000/-instead of Rs.2550-3200/- and that the petitioner was
getting salary in the Ist ACP Scale of Rs.800-1250/-which was revised as Rs.2650-
4000/- and the basic pay of the petitioner was Rs.3040/-in the pay scale of Rs.2650-
4600/-. Accordingly, on his appointment in the office of the 3rd respondent, the salary
of the petitioner was fixed in the Ist ACP Scale of Rs.2650-4000/-. The appointment
of the petitioner was, however, in the scale of Rs.2550-3200/- but after giving the
benefit of past service in the Municipal Committee, his pay had been fixed in the ACP
Scal;e. We uphold the contentions of the petitioner comprehensively and quash the
impugned proceedings.
CWP 15715 of 2008 --5-- VI Conclusion:
6. The writ petition is allowed and the impugned order dated 04-04-2006
(Annexure P-2) is quashed. There shall be a mandamus directing lthe
terminal benefits to be calculated on the 2nd ACP Scale of Rs.3050-4350
and arrears, if any, shall be paid within 3 months. For any further delay,
it will carry simple interest at the rate of 7.5% per annum.
Sd/- Sd/-
{Mehtab S Gill} {K.Kannan}
Judge Judge
27-11-2008