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2018 DIGILAW 4637 (PNJ)

Nafe Singh v. State Of Haryana And Others

2018-12-04

ARUN MONGA

body2018
JUDGMENT Arun Monga, J. - Petitioner seeks parity with other co-workerrespondent No.4 herein who has been granted benefit of regularization in service while the petitioner has been denied the same on flimsy grounds. Facts of the case in brief are that the petitioner was appointed on daily wages on 03.08.1988 as Electrician Helper by the respondent No.3 (Education Board). Later on, without assigning any reason, his services were terminated on 31.03.1989 and aggrieved therefrom, he approached the Industrial Tribunal-cum-Labour Court, Hisar. Vide an award dated 03.02.1995, he was reinstated with continuity of service and full back wages with effect from the date of demand notice. However, the said award was challenged by the respondents by way of Civil Writ Petition before this Court. Vide an order dated 21.07.2014, the writ petition was disposed of in the following terms:- "The impugned award dated 03.02.1995 (Annexure P-3), passed by the Labour Court, Hissar, is modified to the extent that respondent No.2 shall not be entitled to claim any back wages. However, the benefit of continuity of service, as awarded, will be given, while considering his case for regularization, as undertaken above." 2. After being reinstated as per orders passed by this Court (supra), the petitioner sought his regularization w.e.f. 01.02.1996 in view of the fact that his services were restored with benefit of continuity of service with other consequential benefits except his claim for back wages. The petitioner kept following up his case of regularization with the respondents. He has also been seeking parity with one Mr. Ved Parkash who is concededly junior to the petitioner and his services were regularized w.e.f. 01.02.1996. The petitioner, therefore, has been staking his claim with effect from the date his junior was regularized. 3. Having waited for a reasonable long period, the petitioner served a legal notice dated 15.02.2015 to the respondents for regularization of his services w.e.f. 01.02.1996. The same too did not yield any result which led to filing of a writ petition in this Court. The said writ petition was decided with the direction to the respondents to decide the legal notice by passing a speaking order within a period of 03 months from the date of receipt of a certified copy of the order. The same too did not yield any result which led to filing of a writ petition in this Court. The said writ petition was decided with the direction to the respondents to decide the legal notice by passing a speaking order within a period of 03 months from the date of receipt of a certified copy of the order. Pursuant thereto vide impugned order dated 18.11.2015 passed by respondent No.3-The Secretary, Board of School Education, Haryana, petitioner's claim to seek regularization w.e.f. 01.02.1996 was negated and his services were regularized w.e.f. 29.07.2011 (Annexure P-8). 4. Learned counsel for the petitioner strongly relies on the Instructions of the Chief Secretary to Government of Haryana dated 07.03.1996 (Annexurre P-3) which envisage as below:- "The casual and daily rated employees who have completed five year service on 31.01.1996 and were in service on 31.01.1996 shall be regularized provided they have worked for a minimum period of 240 days in each year and the break in service in any year is not more than one month at a time." 5. He also relies on the Instructions of even date i.e. 07.03.1996 (Annexure P-4) again from the office of the Chief Secretary to Government of Haryana which envisage that the work charged/casual/daily wage employees who have been working for the past 03 years in service as on 31.01.1996 shall be eligible for regularization. He contends that one Ved Parkash who is admittedly junior to the petitioner and was similarly situated inasmuch as his services were also terminated vide an award dated 17.04.1995 passed by the Labour Court, Hisar. Later on, Ved Parkash was taken back in service by the respondents. A petition bearing CWP No.1140 of 1996 was filed by the respondents/department to challenge the award qua Ved Parkash which was dismissed by this Court. In compliance of the award dated 17.04.1995 passed by the Labour Court, Hisar, services of Ved Parkash were regularized vide order dated 07.02.2000 w.e.f. 01.02.1996 keeping in view the instructions issued by the Government of Haryana dated 07.03.1996. He further contends that in the present case not only the petitioner is senior to Ved Parkash but even the award of the Labour Court was given in favour of the petitioner prior to Ved Parkash i.e. on 03.02.1995 as against 17.04.1995 qua Ved Parkash. He further contends that in the present case not only the petitioner is senior to Ved Parkash but even the award of the Labour Court was given in favour of the petitioner prior to Ved Parkash i.e. on 03.02.1995 as against 17.04.1995 qua Ved Parkash. Yet the petitioner has been denied the benefit of regularization from the same date as given to Ved Parkash. 6. Per contra learned counsel for the respondents refers to the reasoning given in the impugned order dated 18.11.2015 (Annexure P-8) for non-grant of the similar benefit to the petitioner inasmuch as it states that in view of the later regularization policy dated 29.07.2011, the benefit of earlier regularization policy/instructions dated 07.03.1996 cannot be given to the petitioner. Accordingly, the services of the petitioner were regularized w.e.f. 29.07.2011 i.e. from the date when the later regularization policy came into force. 7. Learned counsel for the respondents contends that petitioner cannot be given benefit of Instructions of 1996. States that on the date the case of the petitioner was considered, the 1996 policy was not holding the field and it was a later policy of 2011. He further contends that when the case of Ved Parkash was considered in the year 2000, the policy of 2011 was not existing and, accordingly, 1996 policy was applied on him. He further contends that the impugned order has rightly recorded that case of the petitioner is different from that of Ved Parkash. He further points out that all the previous regularization policies/instructions prior to 2011 were withdrawn by the Government vide letter dated 25.04.2007 as has been noted in the impugned order. Learned counsel for the respondents further contends that in view of the judgment rendered by the Hon'ble Supreme Court in case titled as State of Karnataka and others Vs. Uma Devi and others , (2006) 4 SCC 1 , previous Government policies for regularization of service were withdrawn, therefore, the petitioner cannot seek benefit therefrom. 8. I have heard learned counsel for the parties and have gone through the case file. 9. Similar argument as raised by learned counsel for the respondents was canvassed before this Court in case titled as State of Haryana Vs. 8. I have heard learned counsel for the parties and have gone through the case file. 9. Similar argument as raised by learned counsel for the respondents was canvassed before this Court in case titled as State of Haryana Vs. Pawan Kumar and others in LPA No.190 of 2013 and a Division Bench of this Court while rendering its judgment observed as below:- "The respondents' claim for regularization was, however, turned down only on the plea that after the decision of the Hon'ble Supreme Court in the case of State of Karnataka and others Vs. Uma Devi and others , (2006) 4 SCC 1 , the Governent policy for regularization of services was withdrawn and no such policy was in force at that time. The learned Single Judge turned down the above stated objection of the appellants and rightly held that even in the absence of any policy, the private respondents would be entitled to regularization of their service on the strength of the Articles 14 and 16 of the Constitution of India." 10. Further more in another LPA No.836 of 2013, Division Bench of this Court in its judgment dated 30.04.2013 observed in the following terms: "It is true that the policy circular dated 01.10.2003 was later on withdrawn by the State Government on 09.05.2007 after the decision of the Hon'ble Supreme Court in State of Karnataka versus Uma Devi and others , (2006) 4 SCC 1 . The fact remains that before withdrawal of the policy, hundreds of daily wagers/contractual employees were made regular under the said policy. The respondents were also in service before withdrawal of the above-stated policy and in view of the Labour Court's Awards which have attained finality, they shall be deemed to be in service on 30.09.2003. As regard to the qualifications, the learned Single Judge has found and rightly so that there are no rules/instructions prescribing any qualification for the post of Beldars. Similarly, the fact that the respondents were appointed in the years 1990 and 1992 and had rendered more than 8 and 6 years service, respectively, as daily wagers before their retrenchment, is sufficient enough to infer that they were appointed against regular work. That apart, it is not the case of the appellants that no daily wager/contractual employee engaged after the years 1990-92 was made regular." 11. That apart, it is not the case of the appellants that no daily wager/contractual employee engaged after the years 1990-92 was made regular." 11. Respectfully following the above judgments of Division Bench of this Court, I do not find any merit in the argument advanced by learned counsel for the respondents and accordingly, the petition is allowed. The impugned order dated 18.11.2015 (Annexure P-8) is, accordingly, set aside inasmuch as non-grant of regularization of service to the petitioner with effect from the date when his junior was granted the similar benefit. 12. It is clarified that the claim of the petitioner shall be considered with effect from the same date when his junior was granted the benefit, regardless of any policy or not, on the ground of parity. The impugned order is violative of the Article 14 of the Constitution of India and therefore has been set aside, as above. It is directed that the petitioner shall be brought on the regular rolls from the date his junior was made regular with all consequential benefits @ 9% interest. 13. No order as to costs.