Research › Search › Judgment

Punjab High Court · body

2005 DIGILAW 167 (PNJ)

Singh Ram v. State Of Haryana

2005-02-01

JAGDISH SINGH KHEHAR, TAPEN SEN

body2005
Judgment TAPEN SEN, J. 1. The petitioner, in the instant writ petition, prays for quashing of an order, dated August 22, 2000 (Annexure P9) whereby and whereunder the Civil Surgeon at Kurukshetra held that the petitioner was not entitled to regulansation firstly because he had not completed 5 years of continuous service with effect from March 17, 1997 to February 1, 1999 and secondly, because the petitioner had not been appointed through the Employment exchange or after obtaining no objection certificate. Upon setting aside/quashing of the aforementioned order, dated August 22, 2000, the petitioner further prays for issuance of a writ of mandamus directing and commanding upon the respondents to regularise his services with effect from February 1, 1999 together with all consequential benefits. 2. The facts which are necessary to be looked into for the purposes of adjudication of this case are that the petitioner was initially appointed as a Mali in the Department of Health services, Government of Haryana, in October 1984 and was posted in the Community Health centre, Ladwa. About 8 years thereafter, i. e. , on March 30, 1992, his services were terminated. Being aggrieved, the petitioner raised a dispute which culminated in reference case No.93 of 1993 before the Labour Court, ambala. The said Labour Court by an award, based on compromise, disposed of the same after taking into consideration the statement of the petitioner which reads as follows: "i have no objection if I am reinstated on the same terms and conditions on which I was working prior to my removal from service. I will not claim back-wages. " (emphasis supplied) 3 In response to the aforementioned statement of the petitioner, one Dr. Usha sharma, Deputy Chief Medical Officer, i Kurukshetra also made a statement before the same Labour Court in the following terms and which is quoted here below: "i have heard the statement. I have no objection if the order is passed in the same terms. " 4. On the basis of aforementioned statements made by the petitioner and the deputy Chief Medical Officer, Kurukshetra, the Labour Court disposed of the reference as fully settled and held that as parties shall be bound by their statements made in the Court. The aforementioned award of the Labour Court is Annexure P1 to this writ petition. 5. " 4. On the basis of aforementioned statements made by the petitioner and the deputy Chief Medical Officer, Kurukshetra, the Labour Court disposed of the reference as fully settled and held that as parties shall be bound by their statements made in the Court. The aforementioned award of the Labour Court is Annexure P1 to this writ petition. 5. The grievance of the writ-petitioner is that in terms of the aforementioned award, the petitioner should have been given the status of continuity in service after counting the period, he had remained out of job, by reason of the order of termination but notwithstanding thereof, and notwithstanding the pronouncement of the award, the respondents did not allow him to join. 6. However, by order, dated March 14, 1997, i. e. , after more than one year from the date of pronouncement of the award, the respondents passed on order purporting to be under the seal and signature of the civil surgeon, Kurukshetra by which permission was given allowing the petitioner to join his post with immediate effect on the same terms as he was working prior to March 31, 1992, i. e. , the date of termination of his services. 7. The petitioner submits that on February 12, 1998, he filed a representation for regularisation of his services vide Annexure p4. Upon perusal thereof, it is evident that what the petitioner had wanted was "adjustment on a vacant post", said to be lying in the community Health Centre at Ladwa. It appears that subsequent to the filing of the said representation, the petitioner came to learn that the respondents were treating the period during which he lay idle (i. e. the period with effect from the date of termination to the date of reinstatement) as absence of 3 years and were therefore, not considering his case for regulansation. Having come to so learn, the petitioner sent another further representation on May 21, 1998 wherein he stated that after reinstatement in service, there could not have been any occasion for the respondents to treat the aforementioned period as a period of absence. This representation is Annexure P5. When the respondents took no action, the petitioner sent yet another representation on august 13, 1999 vide Annexure P6. 8. The respondents did not take any action and this prompted the petitioner to file Civil writ Petition No.3998 of 2000 before this court. This representation is Annexure P5. When the respondents took no action, the petitioner sent yet another representation on august 13, 1999 vide Annexure P6. 8. The respondents did not take any action and this prompted the petitioner to file Civil writ Petition No.3998 of 2000 before this court. This was disposed of on April 24, 2000 (Annexure P8) by a Division Bench of this court with a direction to the Chief Medical officer, Kurukshetra to decide the pending representations of the petitioner within a period of four months. It is thereafter that the respondents passed the impugned order vide annexure P9 wherein, while referring to a notification of the Haryana Government issued on February 1, 1999, the petitioner was informed that there was a break in his service with effect from March 31, 1992 to March 16, 1997. He was further intimated that after pronouncement of the award, since he had joined on March 17, 1997, his services could, therefore, be regularised only from the period march 17, 1997 to February 1, 1999. It was further pointed out that the petitioner did not have five (5) years continuous service as per the Notification, dated February 1, 1999 and, therefore, the representation/prayer of the petitioner for regularisation of his services could not be accepted. 9. The written statement filed on behalf of respondent Nos.1 to 4 raises a preliminary objection to the maintainability of the writ petition saying that there is no policy of regularisation straightaway for part time employees in the State of Haryana except in the department of Education. It has further been contended that the petitioner does not fulfil the conditions laid down in the policy does not have the requisite length of continuous service. It is further contended that the Labour Court had not granted the benefit of continuity of service to the petitioner. 10. It has further been contended that the petitioner does not fulfil the conditions laid down in the policy does not have the requisite length of continuous service. It is further contended that the Labour Court had not granted the benefit of continuity of service to the petitioner. 10. The most important point raised by the department appears to be in Para.2 of the written statement, wherein the respondents have stated that the petitioner was earlier engaged as a part time Mali and pursuant to the pronouncement of the award, he was again engaged on the same status, i. e. , the status of a part time Mali but the period during which he remained out of job, i. e. , March 30, 1992 to march 16, 1997 has to be/would be treated as absence because the petitioner was not a whole time employee. 11. They have also stated that the question of regularisation of services of the petitioner does not arise because there is no vacant post of Mali and that no regular recruitment has been made after February 1, 1999. This has been stated in Para.5 of the written statement. 12. Upon perusal of the pleadings available in this case, this Court is of the opinion that the action of the respondents vis-a-vis the petitioner is hopelessly mis-conceived. Their first mis-conception appears to be on a wrong notion of treating the period March 31, 1992 to March 16, 1997 as either a break in service or a period of absence from duty. The facts of this case clearly go to show that the petitioner was terminated from service on march 30, 1992 and when the petitioner raised a dispute, the same came before the Labour court where the petitioner clearly stated that he had no objection if he was reinstated on the same terms and conditions on which he was working prior to his removal from service. He also categorically stated that he would not claim back-wages for that period. In other words, the second contention of the petitioner in relation to the back-wages was a waiver expressed very rightly, on the principles of "no work no pay" but such waiver of monetary benefits cannot be deemed to be a waiver of his length of service or continuity thereof. In fact the petitioner used the words "reinstatement on the same terms and conditions". In fact the petitioner used the words "reinstatement on the same terms and conditions". This was agreed upon by the Deputy Chief Medical officer, Kurukshetra (Dr. Usha Sharma) in the presence of the Labour Court, and who said that she had no objection if the order was passed on the same terms. 13. It was on the basis of such statement being given out before a Court of Law, that the matter stood finally settled and disposed of. Thereafter, the State of Haryana or its officers have no authority or jurisdiction to turn around and attempt to paint a picture or create a situation totally contrary to what the parties had unilaterally said or compromised before the labour Court because, if they are allowed to do so, the same would upset the well known principles of qui approbat non reprobat. Having agreed to the offer of the petitioner, i. e. , reinstatement on the same terms and conditions on which he was working prior to his removal from service, the respondent cannot subsequently be allowed to deviate by creating a situation to show as if it was a case of "re-appointment" for the purposes of depriving the petitioner the benefits of continuity in service with effect from the date of his initial appointment, i. e. , October 1984 This Court is, therefore, clearly of the opinion that the impression created by the respondents in treating the period March 31, 1992 to March 16, 1997 as a break in service or absence from duty is wholly irrational, illegal and misconceived. It is, therefore, thoroughly deprecated by this Court and it is held that the services of the petitioner was continuous right from the initial day of his service, i. e. , from 1984. 14. Having so held in the manner indicated above, this Court turns its attention to Para.11 of the writ petition, which reads as follows: "that there are instructions of the government of Haryana, dated February 1, 1999, which provides regularisation of part-time Class IV employees. Copy of the instructions, dated February 1, 1999, is enclosed herewith as Annexure P10 for kind perusal. It is also necessary to pertinent-mention here that one sanctioned post of Mali is lying vacant for the last 6 months in the office of Civil Hospital, Lada district Kurukshetra-respondent No.4, where the petitioner is working. Copy of the instructions, dated February 1, 1999, is enclosed herewith as Annexure P10 for kind perusal. It is also necessary to pertinent-mention here that one sanctioned post of Mali is lying vacant for the last 6 months in the office of Civil Hospital, Lada district Kurukshetra-respondent No.4, where the petitioner is working. The case of the petitioner is squarely covered by the instructions of the Government. " (emphasis supplied)While interpreting Para.11 of the writ petition one has necessarily to look into the relevant portion of the instructions, dated february 1, 1999, which has been brought on record vide Annexure P10. Upon perusal of the same, this Court notices that pursuant to a judgment of this Court delivered on February 24, 1998 in C. W. P. No.15602 of 1977 (Mange ram and others V/s. State of Haryana and others)the State had been directed to frame a policy in relation to regularisation of services of the group D part-time employees working in government Departments, and therefore, the state of Haryana resolved as under: " (i) Whenever a Group D post become available in the same institution/office of the State Government, where a part time employee is working and has completed 5 years continuous service on the date of issue 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. (emphasis supplied) (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; (ii) That the employee possesses the prescribed qualifications for the post; and (iii) That the work and conduct of such employees has been satisfactory. " 15. The pleadings of this case shows that the petitioner was initially appointed on october, 1984 as a part time Mali and he was allowed to continue for almost 8 years, whereafter his services were terminated on march 30, 1992. The fact that he was engaged as a part time Mali in October, 1984 is also admitted by the respondents in Para.2 of the written statement where they say that, "however it is submitted that the petitioner was engaged as part time Mali in October, 1984. " 16. The fact that he was engaged as a part time Mali in October, 1984 is also admitted by the respondents in Para.2 of the written statement where they say that, "however it is submitted that the petitioner was engaged as part time Mali in October, 1984. " 16. In view of what has been held above to the effect that the petitioners service was continuous right from 1984, and reading compromise recorded before the Lok Adalat labour Court, there cannot be any third interpretation but to conclude that the petitioners services must be deemed to be continuous with effect from October, 1984 till the date when he was taken back in service as a consequence of the award of the Labour court. To that extent, the petitioner would be entitled to for counting this period for his service but, on account of his own offer made before the Labour Court that he would not claim any back-wages, he cannot be held to be entitled to any monetary benefit for the said period following the principles of "no work no pay. " 17. But this by itself will not deprive him to take the benefit of clause (i) of the instructions, dated February 1, 1999, quoted above because he will be deemed to have completed more than 5 years of continuous service as on the date of issuance of the said instructions and, therefore, he must be held to be entitled for being given preference for consideration for regular appointment against a post subject to fulfilment of the other clauses of the same instructions. 18. We have to once again, therefore, go back to Para.11 of the writ petition in which the petitioner has stated that one sanctioned post of Mali is lying vacant for the last six months in the office of Civil Hospital, Ladwa in the District Kurukshetra, where the petitioner is working. This specific assertion of the petitioner has not been replied to by the respondents because in Para.11 of the written statement they have stated thus: "that Para.11 of the petition is admitted to the extent that there are instructions of haryana Government dated February 1, 1999, which provide for giving reference subject to prescribed condition to the part time employees in recruitment against Class iv post, and rest of all para is wrong and hence denied. It is totally wrong that the case of the petitioner is squarely covered by these instructions of the Government, it is submitted that the petitioner did not fulfil any of the requirements mentioned in the letter, dated February 1, 1999, issued by the haryana Government, i. e. , neither he had completed the five years continuous service on the date of issue of these instructions, nor that the petitioner was employed through employment Exchange or after obtaining the non-availability certificate from the employment Exchange, nor the petitioner possesses the prescribed qualification for the post of Mali. So, in these circumstances the petitioner did not fulfil any of the requirement of the instructions, dated february 1, 1999, what to say about squarely covered by these instructions. It is pertinent to mention here that the petitioner was engaged as part time Mali only for 5 hours, so according to these instructions, the petitioner was not entitled to regularisation as it is specifically mentioned in these instructions that such part time worker cannot be regularised like a fill time employee. So, the representation of the petitioner for regularisation has been rightly rejected vide order, dated August 22, 2000 which is a speaking order. " The italicised portion above cannot be deemed to be an answer to the specific plea of the petitioner about one post lying vacant for six months. 19 Upon perusal of what has been stated by the respondents in Para.11 of the written statement quoted above, this Court finds that the very specific assertion of the writ petitioner to the effect that one sanctioned post of Mali was lying vacant for the last six months in the office of Civil Hospital, Ladwa in the District kurukshetra was an averment which required a specific answer but the respondents have not even touched this categorical statement of the petitioner. In that view of the matter, this Court proceeds on the basis as if that the averments made by the petitioner have been admitted by the respondents. In support of the aforesaid contention, this Court draws inspiration from a judgment of the Honble Supreme Court in the case of Naseem Bano V/s. State of Uttar Pradesh and others AIR 1993 SC 2592 : 1993 Supp (4)SCC 46 : 1994-I-LLJ-84. In support of the aforesaid contention, this Court draws inspiration from a judgment of the Honble Supreme Court in the case of Naseem Bano V/s. State of Uttar Pradesh and others AIR 1993 SC 2592 : 1993 Supp (4)SCC 46 : 1994-I-LLJ-84. Their Lordships in the said judgment have held inter alia that the high Court, while dealing with the averments not (sic) controverted by respondents, should eroceed on the basis that those averments had een admitted by the respondents. In another judgment of the Ranchi Bench of the then Patna high Court (now Jharkhand High Court), S. B. SINHA, J. observed in the case of Ganesh chander Jha V/s. Steel Authority of India and others, that if facts and figures given in the writ application have not been controverted in the counter-affidavit, then those facts and figures must be accepted and that a vague denial in the counter-affidavit is not sufficient. The aforementioned judgment is reported in 1992 (1) PLJR 165. 20. In view of what has been stated above, this Court proceeds to accept the contention of the petitioner to the effect that one sanctioned post of Mali is lying vacant for the last six months in the office of Civil Hospital, Ladwa in the District Kurukshetra. 21. For the foregoing reasons, this Court, therefore, is of the opinion that this writ petition must succeed and it is, therefore, accordingly allowed to do so. The impugned order, dated august 22, 2000 is hereby set aside and a writ of mandamus is hereby issued to the respondents to treat the services of the petitioner as continuous and to confer upon him all benefits strictly as per the instructions, dated february 1, 1999 (Annexure P10) subject to the other clauses thereof and which have been quoted above. 22. The writ petition is, therefore, allowed but, in the facts and circumstances of this case, there shall be no order as to costs.