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2009 DIGILAW 196 (PNJ)

H. v. P. N. L. VS Behari Parshad

2009-01-23

A.N.JINDAL, UMA NATH SINGH

body2009
Judgment Uma Nath Singh, J. 1. This LPA arises out of a judgment dated 20,12.2007, passed by a learned Single Judge of this Court in CWP No. 18896 of 2001, allowing the writ petition on the concession given by iearned counsel for the appellant-Nigam that the writ petition could be disposed of in terms of the order dated 197.2007 in CWP No. 5136 of 1992 (Karam Singh vs. State of Haryana and others), and Charan Dass vs. Punjab State Electricity Board, Patiala and another, 2005(4) RSJ 764). 2. As per the averments in the writpetition, Behari Parshad (respondent herein) joined Service with Haryana Electricity Board as TMateon 1.4.1968 and he retired as Assistant Foreman on 31.12.1989. On 8.2.1988, a circular was issued vide Annexure P-2 herein, pursuant to a meeting of the Board held on 30.12.1987/1.1.1988. Para(ii), (iv) and (vi) thereof being relevant are reproduced hereunder:- "(i) xx xx xx xx (ii) The practice of engaging workmen on work charged basis may be discontinued immediately. The existing work charged staff may be adjusted against available vacancies in different categories of staff by constituting a Screening Committee (Division-wise) consisting of the following officers: (1) S.E.of concern circle - Chairman (2) XEN of concerned Division - Member (3) A representative from the Head Office - Member Intimation in respect of a representative(s) of Head Office on the above Committee is being sent separately. (iii) xx xx xx xx (iv) The residual work charged staff, who are either considered unsuitable, or do not find place for absorption against any regular post may be appointed as T-Mate on regulär basis by getting the equivalent number of posts created with the approval of the Board. (v) xx xx xx xx (vi) The work charged staff who are found suitable for various posts may be offered regular appointments with deemed date of 1.1.1988, thereby meaning that there would be no work charged establishment with effect from 1.1.1988 in the Board...." 3. Thus, the work charged staff who were found suitable for various posts were to be offered regular appointments with deemed date of 1.1.1988 and no work charged employee was to exist on the establishment of the Board w.e.f. 1.1.1988. However, on 4.7.1988, this was clarified that the empioyees who had already crossed the age of superannuation could not have been considered for adjustment against the regular post. However, on 4.7.1988, this was clarified that the empioyees who had already crossed the age of superannuation could not have been considered for adjustment against the regular post. The writ petitioner (respondent herein) made representations for his absorption as he retired after 4.7.19.88 i.e. on 31.12.1989 as work charged employee on attaining the age of superannuation at the age of 60. Besides, he also filed a Civil Writ Petition No. 1992 of 1992 which was disposed of by the Lok Adalat with a direction that his case was to be examined for regularization of service w.e.f. 1.1.1988. However, he was denied the benefits of regularization as his date of birth was recorded as 1.1.1930 and he had already crossed the age of superannuation at 58 on 31.12.1987. The respondent filed anotherwrit Petition being CWP No. 18896 of 2001, which was disposed of vide impugned order dated 20.12.2007 as aforesaid, on the concession given by learned counsel for the appellant-Nigam. Irrespective of the fact that the writ Petition was disposed of by a consensus order, Harvana Vidyut Parsaran Nigam Limited, Panchkula has come in appeal before us against that order. 4. Learned counsei for appellant-Corporation submitted that the respondent was a work charged Class-Ill employee and his age of superannuation was fixed at 58 years which was due on 31.12.1987. Thus, the respondent could not have been absorbed as a regular employee after attaining the age of superannuation. Learned counsel also made a reference to a judgment of learned Single Judge in CWP No. 820 of 1991 submitting that after considering this question, the learned Single Judge held that since the writ petitioner therein could not have continued till 1.1.1988 when the policy for regularization came into force, his service could not have been regulahzed. 5. On the other hand, learned counsel for the respondent placed reliance on the circular dated 8.2.1988, particularly para (iv) as aforesaid. 6. 5. On the other hand, learned counsel for the respondent placed reliance on the circular dated 8.2.1988, particularly para (iv) as aforesaid. 6. On due consideration of rival submissions and perusal of the appeal records, we are of the considered view that the intent of said circular was very clear that if a work charged employee was not found suitable to be absorbed in class-lll post, he was to be absorbed in class-IV, and further that the respondent retired only on 31.12.1989, and not 31.12.1987, it is obvious that he continued in service beyond 31.12.1987 and thus, he was entitled to get the benefits of said Circular dated 8.2.1988 irrespective of the plea of appellant-Nigam that the respondent was a Class- III employee. This is also obvious that the continuance of service of the respondent after 1.1.1988, without regularisation would mean that he was treated as a Class- IV employee and was thus, covered under Clause (iv) of the Circular. As such, we may hold that the respondent was a work charged employee who was to retire at the age of 60. This is also not in dispute that para (iv) of the aforesaid circular was to be construed in favour of the work charged employees and as far as possible they were to be adjusted against the existing vacancies. And if it was not possible to absorb a work charged employee in Class-lll on being found unsuitable, he was to be absorbed in class-IV. As regards the judgment under reference in CWP No. 820 of 1991, passed by a learned Single Judge, we do not find any discussion about Para (iv) of the Circular. 7. In view of all the aforesaid, we do not find any infirmity in the impugned judgment of learned Single Judge and the same is thus, affirmed. Moreover, we would like to clarify that this Court vide the order of even date has also dismissed LPA No. 209 of 2007, filed by the appellant herein against the judgment and order passed in Civil Writ Petition No. 5136 of 1992 (Karam Singh vs. State of Haryana and others). Thus, this LPA is dismissed.