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2013 DIGILAW 1224 (PNJ)

Ram Chander v. State of Haryana

2013-09-12

RAJIV NARAIN RAINA

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Judgment Rajiv Narain Raina, J. Cattle fairs in Haryana are regulated by legislation called the Haryana Cattle Fairs Act, 1970. This act makes provision for holding/controlling/management and regulation of cattle fairs in the State of Haryana and for matters connected therewith and incidental thereto. In the Statement of Objects and Reasons, the legislative intent has been stated. The Act has been passed to extinguish the right of private persons and some others to hold cattle fairs and to vest it exclusively in the State Government so that in future, such fairs are held by or under the authority of the State Government through the agency of such persons or authorities as the State Government may deem fit. The local authorities where the cattle fairs are held are required to render vital assistance to the State Government in the matter of holding such fairs. It was proposed that an appropriate portion of the income accruing to the State Government from such fairs be allocated to the local authorities in such proportion as the State Government may consider fit for development of cattle or animal husbandry in areas, from which, the fund derives income or such other purposes connected therewith as the State Government may specify. Before the passing of the Act, the right to hold cattle fairs was exercisable by the Municipal Committees, Panchayat Samities and Panchayats in accordance with their local laws and even private persons were entitled to hold cattle fairs on their lands. The right of private persons to hold cattle fairs on their lands was protected by two decisions of the Supreme Court in Tehir Hussain v. District Board, Muzzaffar Nagar, AIR 1954 Supreme Court 630 and Capt. Ganpati Singhji v. State of Ajmer and others, 1955(1) Supreme Court Reports, 1065. The Act creates a monopoly in the State and excludes the right of private persons in occupying the field for private trade. Rule 3 bars holding of cattle fairs except by or under authority of the State Government. S.4 deals with appointment of Cattle Fair Officers and their duties in relation to holding of cattle fairs in a District. Sub Section (2) of S.4 make Fair Officer responsible for making arrangements for holding cattle fairs subject to the directions and control of the Deputy Commissioner of the district. S.5 constitutes a Committee for purpose of advising the Fair Officer. Sub Section (2) of S.4 make Fair Officer responsible for making arrangements for holding cattle fairs subject to the directions and control of the Deputy Commissioner of the district. S.5 constitutes a Committee for purpose of advising the Fair Officer. S.10 provides for license of brokers; it provides that an order suspending or cancelling broker’s license is revisable under S.10(5) by the Deputy Commissioner. S.16 establishes the cattle fair fund for each district where all fees, rents and other sums of money received or realized under the provisions of the Act and the rules framed thereunder and all donations or grants made to the Government by the local authority or any other person or society would be deposited into the Cattle Fair Fund to be kept in Government Treasury/Sub-Treasury in the district as specified by the Deputy Commissioner. The fund shall be operated by the Deputy Commissioner in the prescribed manner laid down under S.16(3) which should include four purposes enumerated, one of which, relevant to this petition is S.16(3)(b) which prescribes the purpose of payment of salaries and allowances of such persons employed in connection with a cattle fair. A broker has been defined in S.2(a) to mean a person who strikes a bargain between a seller and purchaser of cattle in any cattle fair on payment of commission. A cattle fair has been defined in S.2(c) to mean a gathering of more than 20 persons for the purpose of sale or purchase or exhibition for sale or purchase of cattle and includes a cattle market. S.2(d) explains Deputy Commissioner to include Additional Deputy Commissioner and such other officers as the State Government may by notification appoint for the purpose of exercising the powers and for performing the functions of a Deputy Commissioner under this Act. To carry out the purposes of the Act, rules have been framed under S.22 of the Act known as the Haryana Cattle Fair Rules, 1970. There is a person called “certificate writer” which has been defined in rule 2(a) to mean a person engaged by the fair officer, for the duration of a fair, for performing such functions as are assigned to the certificate writer under the provisions of these rules. This certificate writer in the local dialect is called the parchhi writer. There is a person called “certificate writer” which has been defined in rule 2(a) to mean a person engaged by the fair officer, for the duration of a fair, for performing such functions as are assigned to the certificate writer under the provisions of these rules. This certificate writer in the local dialect is called the parchhi writer. The twelve petitioners before this Court are parchhi writers/certificate writers and claim that they have been working for a long time in this field without interruption. They claim regularization of their services under the policy instructions of the Government of Haryana dated 29.7.2011 (P7) and the amended policy dated 17.1.2012 (P8) with all consequential benefits. These policies have been notified as rules under proviso to Article 309 of the Constitution of India read with Clause 6 of the Haryana Government General Administration Department (General Services) Notification dated 28.1.1970 which specifies such Group C posts as have been held for a minimum period of ten years as on 10.4.2006 by Group C employees/workers on adhoc/direct/work charged/daily wages and part time basis to be taken out of the purview of the Haryana Staff Selection Commission. The mode and manner of regularization has been specified in this policy. It has been issued in the light of the decision of the Supreme Court in Secretary, State of Karnataka v. Umadevi 2006(4) SCC 1 . The amendment substitutes clause 1 and provides that the earlier notified period of continuous break in such service should not be more than one month in a calendar year. The changeover as modified prescribes that the break in service should not have been caused without fault attributable to the employee, such break period should be condoned unless it is for an extraordinary longer period i.e. not more than 90 days in a year. However, if the break in service has been caused due to fault of the employee like abandonment of employment, the Government may not condone the same if the period of such break is more than a period of 30 days in a year. The petitioners claim that they are matriculates and fulfill all the qualifications for the post of parchhi writer. However, no qualifications have been laid down for engagement for certificate writers in the 1970 rules. The word ‘certificate writer’ is not even mentioned in the Act. The petitioners claim that they are matriculates and fulfill all the qualifications for the post of parchhi writer. However, no qualifications have been laid down for engagement for certificate writers in the 1970 rules. The word ‘certificate writer’ is not even mentioned in the Act. The certificate writers are engaged by the Fair Officer for duration of a fair for performing such functions as are assigned to the certificate writers under the provisions of these rules. Therefore, the certificate writers/parchhi writers work under the control and supervision of the Fair Officer. It is an engagement and not an appointment to a public post. It is an engagement but it seems that the Commissioner and Secretary to the Government, Haryana Development and Panchayat Department accords approval of registration of parchhi writers for a cattle fair circle. Before engagement, parchhi writers have to deposit Rs. 2000 in cash as security before being engaged to the cattle fair. Heard the learned counsel for the petitioner. He submits that a large number of Group C and D employees have been regularized by the Haryana Government in terms of its policy of regularization. He submits, though without showing authority or source, that from 17.5.2000, instructions have been issued that parchhi writers would operate in the whole State and the 1970 Act has been amended, accordingly. Learned counsel submits that a legal notice has been served on the Government on 14.5.2013 (P9) praying that the services of the petitioners should be regularized as Class-III employees in the light of the policies P7 and P8. No decision has been taken on the representation/legal notice so far. A prayer is made that the respondents be directed to decide the representation. Now to answer the issues raised and their clamour for official status through the process of regularization and permanency of tenure and security of service these certificate writers are not holders of public office or public posts through the constitutional scheme of public appointments consistent with Articles 14 and 16 of the Constitution of India. They were neither engaged nor appointed by the Government directly or indirectly through intermediaries and contractors. They are ‘engaged’ but not ‘appointed’ by the cattle fair officer or the State Government. They have even to deposit security of Rs.2000/- as something akin to performance guarantee before entering upon the engagement, which concept is usually unknown to public employment. They were neither engaged nor appointed by the Government directly or indirectly through intermediaries and contractors. They are ‘engaged’ but not ‘appointed’ by the cattle fair officer or the State Government. They have even to deposit security of Rs.2000/- as something akin to performance guarantee before entering upon the engagement, which concept is usually unknown to public employment. These cattle fairs regulated by the Act and rules are not held perennially but occasionally from time to time. The regularization policies P7 and P8 or any other policy circular on regularization of services of the employees are neither designed nor aimed nor applicable to them. The petitioners appear to be suffering under a misconception that they have a right to regularization of services under the State. Besides, the State Government is not under any statutory duty acting through its officers to decide the legal notice-cum-representation dated 14.5.2013 (P9) and the state functionaries ought not to be burdened with time consumed on such frivolous claims or be made to waste their public time by deciding legal notices and representations which have no statutory basis which may keep them away from other pressing duties of the day. The argument of the learned counsel for the petitioner that a direction should be issued to the limited extent to the State Government to decide the legal notice does not impress me. There should be a clear demonstration of right to relief and duty cast upon the respondents to decide such representations before this Court entertains such petitions and pass orders as prayed for in this petition. The request is therefore rejected. No interference or judicial intervention is called for or warranted under the Act or rules which do not even prescribe even their duties and responsibilities or emoluments, salary etc. If they get remuneration it is not paid from public funds appropriated by the legislature but are paid probably out of the cattle fair fund since source of payments are not prescribed. If they get remuneration it is not paid from public funds appropriated by the legislature but are paid probably out of the cattle fair fund since source of payments are not prescribed. Merely because the State Government approves the names of certificate writers sponsored and engaged by the fair officer appointed by the State Government will not confer right to regularization as it is only a regulatory mechanism to lend them authority to act in the sphere of work assigned and supervised by the cattle fair officer working under the control and supervision of the Deputy Commissioner of the district to carry out the purposes of the special law. They can at best make claims against arbitrary or unfair action of the fair officer being a Government servant with respect to matters connected with or incidental to their engagement which is not the case here. The writ petition is devoid of merit and for the foregoing reasons, the same fails and is dismissed in limine.