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2003 DIGILAW 142 (PNJ)

Gopal Sharma v. State Of Haryana

2003-01-27

M.L.SINGHAL, VINEY MITTAL

body2003
Judgment M.L.Singhal, J. 1. Facts:- Petitioner was appointed as daily wager with effect from 1.4.1998 as Fitter Helper in the Department of Public Health of the State of Haryana. He has been working for the last 8-9 years without any break and to the satisfaction of his superiors. Vide letter dated 7.8.1996 Annexure P-1, State of Haryana issued policy of regularisation directing that all causal and daily rated employees who have completed five years of service on 31.1.1996 shall be regularised provided they have worked for a minimum period of 240 days each year and also there was no break of not more than one moth in any year at a time. State of Haryana modified the said policy Annexure P-l vide instructions issued on dated 18.3.1996 Annexure P-2 that all those work charge/casual/daily rated employees who have completed three years service on 31.1.1996 and fulfil other conditions as laid down in policy Annexure P-l, shall be regularised. Service of many daily rated/casual/work charged employees were regularised by the State of Haryana in the light of policies Annexure P-l and P-2. Petitioner has been requesting his employer to regularise his service in the light of those policies Annexure P-l and Annexure P-2 as on 31.1.1996 he had completed 3 years of service. He had put in 240 days of work in each year and there was no break in his service from 1.4.1993 to 31.3.1996. For the period 1.4.1993 to 31.1.1996, his days of work was as follows:- 1.4.1993 to 31.3.1994 365 days without any break 1.4.1993 to 31.3.1995 365 days without any break 1.4.1993 to 31.3.1996 365 days without any break His last representation for being regularised in terms of the said policies is Annexure P-3 dated 9.1.02. Regularisation was not granted to him on the contention that as on 31.1.1996 he had not put in 3 years of service. He had put in 2 years and 10 months of service and was thus not fulfilling the conditions as laid down in the said policies Annexure P-1 and P-2. Vide order dated 9.4.02, his services were regularised. Vide order Annexure P-10, order regularising his services dated 9.4.02 was withdrawn and his services were regularised with effect from 1.2.1996. 2. He had put in 2 years and 10 months of service and was thus not fulfilling the conditions as laid down in the said policies Annexure P-1 and P-2. Vide order dated 9.4.02, his services were regularised. Vide order Annexure P-10, order regularising his services dated 9.4.02 was withdrawn and his services were regularised with effect from 1.2.1996. 2. Through this writ petition filed under Articles 226/227 of the Constitution of India, petitioner Gopal Sharma has prayed for the issuance of a writ of certiorari quashing order Annexure P-10 whereby office order No.70865-99 dated 9.4.2002 regularising his services was withdrawn and his services were deregularised with effect from 1.2.1996. It is stated that his services were deregularised in disregard of the instructions dated 18.3.1994, 7.3.1996 and 18.3.1996 and the law laid down by the Honble Supreme Court of India as well as the Punjab & Haryana High Court in a number of judgments. 3. Respondent-State of Haryana contested this petition. It was argued that the petitioner was not entitled to regularisation as he was not fulfilling the conditions laid down in policies Annexure P-l and P-2. He was not completing 3 years of service as on 31.1.1996 whereas under those policies, as on 31.1.1996, he should have out in 3 years of services. Services of only those daily wagers/work charged workers were regularised who fulfilled the eligibility conditions laid down in the policy. 4. We have heard the learned counsel for the petitioner, Learned Deputy Advocate General for the State of Haryana and have gone through the record. 5. Petitioner was entitled to regularisation in terms of policies Annexure P-1 dated 7.3.1996 and Annexure P-2 dated 18.3.1996. He had worked for 365 days without any break from 1.4.1993 to 31.3.1994. He had worked for 365 days without any break from 1.4.1994 to 31.3.1994. He had worked for 300 days without any break from 1.4.1995 to 31.1.1996. In this case, if he had actually worked for 240 days without any break in service of more than one month at a time in a year, he shall be deemed to have worked for one year. In this case, thus as on 31.1.1996, he shall be deemed to have completed 3 years without any break. In this case, if he had actually worked for 240 days without any break in service of more than one month at a time in a year, he shall be deemed to have worked for one year. In this case, thus as on 31.1.1996, he shall be deemed to have completed 3 years without any break. In policy Annexure P-l it is clearly provided that the casual and daily rated employees who have completed 5 years service on 31.1.1996 and were in service on 31.1.1996 shall be regularised provided they have worked for 240 days in each year and break in service in any year is not more than one month. Vide policy Annexure P-2, the condition of 5 years service was brought down to 3 years. 6. A perusal of the aforesaid policy Annexure P-1 substituted by policy Annexure P-2 would clearly suggest that if a person had actually worked for 240 days in a year, it would be deemed that he had worked for full one year and in such a situation, when the policy provided that a person was entitled to be regularised in service if he had completed 3 years of service as on 31.1.1996, it would actually mean that a year was deemed to be completed if a person had served for 240 days. If the matter is viewed from this angle, the petitioner was entitled to regularisation in service. Regularisation in service ordered with effect from 9.4.02 was thus quite in order. We are supported in this view by a Division Bench judgment of this Court in Ram Dhari v. The Chief Wild Life Warden, Haryana, 1996(1) S.C.T. 615, where it was laid down as follows;- "Regularisation of daily wage workers on completion of 5 years of service on or before 31.3.1995 - petitioner worked for more than 240 says in every year for more than 5 years without break for more than 30 days at any time, 240 says in one calender year have been given a deeming fiction of one year. All interruptions on account of strikes which are legal, sickness, authorised leave, lock-out, cessation of work and absence of workman due to accident, have to be ignored while calculating 240 days in a calender year. All interruptions on account of strikes which are legal, sickness, authorised leave, lock-out, cessation of work and absence of workman due to accident, have to be ignored while calculating 240 days in a calender year. Denial of regularisation on the ground that the petitioner worked only for 4 years and 10 months within 5 years is totally illegal, and contrary to the instructions." (It may be mentioned here that in the State of Haryana under the old policy dated 27.5.1993, all daily wage employees who had completed 5 years service as on 31.3.1993 and were in service on 31.3.1995 could ask for regularisation if they had put in not less than 240 days in each completed year without any break for more than 30 days at any time. 240 days in one calender year have been given a deeming fiction of one year). 7. View taken in Ram Dharis case (supra) was followed by another Division Bench of this Court in Dharam Singh v. State of Haryana, 2002(4) S.C.T. 589. In Sh. Mohan Lal v. The Management of M/s Bharat Electronics Ltd.? 1981(2) S.L.R. 11, the Honble Supreme Court held that "a workman shall be considered to be in continuous service for a period of one year despite the fact that he has not rendered uninterrupted service for a period of one year but has rendered service for a period of 240 days during the period of 12 calender months counting backwards preceding the date of retrenchment." It was held that "It is not necessary for the purposes of Sub section (2) (a) that the workman should be in service for a period of one year. If he is in service for a period of one year and service is continuous service within the meaning of Sub-section (1), his case would be governed by Sub-section (1) and his case need not be covered by Sub-section (2), Sub-section (2) envisages a situation not governed by Sub-section (1) and Sub section (2) provides for a fiction to treat a workman in continuous service for a period of one year despite the fact that he has not rendered uninterrupted service for a period of one year but he has rendered service for a period of 240 days during the period of 12 calender months counting backwards and just proceeding the relevant date being the date of retrenchment." It is thus clear that the petitioner shall be deemed to have fulfilled all the conditions stipulated in policies Annexure P-1 and P-2 for regularisation. 8. For the reasons given above, we are of the opinion that the petitioners services were rightly regularised vide earlier order dated 9.4.202 and thus, were wrongly deregularised vide order Annexure P-10. Accordingly, office letter Annexure P-10 of respondent No.3 is quashed and he shall be deemed to have been regularised in terms of order dated 9.4.02 with effect from 1.2.1996.